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Judge's definition of rape was too exacting when he acquitted defendant, appeals court says

An Ohio judge failed to follow established case law when he acquitted a rape defendant for failing to penetrate the victim far enough, an appeals court has ruled.

The Ohio 9th District Court of Appeals said it accepted the case because the disregard for precedent is capable of repetition and is “highly likely to be repeated by this particular trial judge.” The judge is James Burge of Lorain County, who acquitted Samuel Nieves of rape in a bench trial last year, the Elyria Chronicle-Telegram reports.

Nieves, who lives in Lorain, was convicted, however, of gross sexual imposition and sentenced to 17 months in prison.

The appeals court said in its opinion (PDF) that Burge ignored unanimous 9th District rulings when he opined on the penetration requirements of the rape statute. “So to that extent, I don’t care what anybody says, I’m right,” Burge had said. “In fact, the more I talk, the righter I get.”

The victim had testified Nieves had lured her and a friend to his apartment on false pretenses, then sent the friend to the store before sexually assaulting her. She said she tried to fight him during the attack.

The state did not appeal the acquittal itself, acknowledging that double jeopardy prevents a retrial of the rape charge. Burge did not comment when contacted by the Chronicle-Telegram.