Unequal Justice: Du Pont heir's rape sentence uncommon

Cris Barrish | The News Journal

Similar defendants convicted of fourth-degree rape received harsher treatment in Delaware's criminal justice system than du Pont family heir Robert H. Richards IV, who avoided prison after admitting he raped his daughter, an investigation by The News Journal found.

But there are examples of several others like Richards who received little or no prison time after pleading guilty to fourth-degree rape of a minor, a review of similar cases found.

While Richards never spent a day behind bars for sexually abusing his daughter, most similar defendants convicted of a single count of fourth-degree rape received a prison sentence, court records show. In fact, only one other defendant did not spend a single day locked up, records show.

Richards and the other defendant who avoided jail time posted bail immediately after their arrest. Several other defendants went to jail for as little as one day and up to several months because they couldn't afford bail, and some received credit for time served at sentencing, court records show.

Richards, 48, of Greenville, also was the only defendant granted probation under the condition that he receive extensive, in-patient treatment. He avoided prison because he agreed to receive that treatment at a Boston psychiatric hospital, although he never went, records show.

And no other defendant's sentencing order included the observation that they "will not fare well" in prison, a note included in Superior Court Judge Jan R. Jurden's 2009 order for Richards to serve eight years on probation.

Judith Miller, an advocate for child rape victims who criticized the fact that Richards didn't go to prison, said the reality that others spent time in prison tells her the less fortunate suffer worse consequences for the same crimes.

"It doesn't really look like justice is blind here," said Miller, who heads the Delaware chapter of The Survivors Network of those Abused by Priests. "I think the punishment should fit the crime. Sexually abusing children is a horrendous crime and I think there should be some punishment because society values our children and wants to protect them."

Defense attorney Joseph A. Hurley countered that the public shouldn't be surprised that a man of privilege like Richards, who hired high-profile Wilmington attorney Eugene J. Maurer Jr., would fare better in court than those of lesser means. Hurley represented three of the clients whose cases were reviewed by The News Journal. One received a 30-month sentence, but two were sentenced only to probation.

"That is reality, Jack," Hurley said. "If you got a little bit of money, then you can afford a better vehicle, and pick from the talent pool of attorneys because you have affluence. That is the way life is."

VIDEO: Du Pont heir faces child sex lawsuit Robert H. Richards IV, a du Pont family heir who raped his 3-year-old daughter nearly a decade ago but received no prison time now faces a lawsuit from his former wife that accuses him of sexually abusing his toddler son. (3/18/14)

To understand how Richards' case compared with other similar child rape cases, The News Journal identified more than 1,000 sex offender cases in New Castle County. Court officials and Attorney General Beau Biden's office said they could not provide a list of similar cases, so The News Journal used court and public records to find them.

The vast majority of cases were not identical to Richards' case because they did not involve first-time convicts who pleaded guilty since 2008 to a single count of fourth-degree rape involving a minor. Those cases were excluded from the review to ensure that the comparison to Richards was fair.

There were 15 defendants other than Richards who matched that criteria.

While Richards received probation for digitally penetrating his young daughter, a 34-year-old man from Ogletown received 2 1/2 years in prison for taking the virginity of a 17-year-old girl after he gave her alcohol on New Year's Eve.

A 24-year-old man from a Bear trailer park received one year behind bars for having sex with a 14-year-old girl he met while driving her middle school bus. A 20-year-old New York man received a four-year sentence for having sex with a 14-year-old girl he met at a Wilmington day care center. Another man spent nearly a year in prison – time served when he couldn't post bail that was credited to his sentence – for having sex with a 12-year-old girl.

Ten of the 15 defendants were sentenced to prison – from two weeks to four years – or their pending deportation was noted at sentencing. Two spent time in jail after not posting bail and received credit for time served when the judge sentenced them. Two spent one day in jail before making bail. One defendant, like Richards, avoided any time behind bars.

The judge's sentence followed the prosecutor's recommendations in all but four cases, court records show. In 13 of the 15 cases, prosecutors either urged prison time at sentencing or noted the defendant's "time served."

Judges also required defendants to comply with several other provisions as part of their sentences, such as registering as a sex offender, avoiding contact with the victim or minors, taking a prison sexual disorders counseling program, or undergoing mental health or substance abuse evaluation, and following recommended treatment.

All 15 cases were resolved with a plea bargain that offered lesser charges and prosecutors routinely gave generous deals to criminals who would have faced long mandatory prison terms if convicted of their original, more serious charges. The deals were made by prosecutors working for Biden, who has said stopping child sexual predators is his top priority.

The court records also show that Richards' plea deal for fourth-degree rape used a charge that commonly is applied in statutory rape cases, in which an adult is accused of having sex with a minor that Delaware law considers too young to consent. Only two of the other 15 cases involved rapes of child family members and both of those men spent time in prison – one for 48 days until he could post bail and the other for eight months until his sentencing, when attorneys noted his deportation was pending.

One defendant who, like Richards, didn't receive prison time was 30-year-old Doyle Hinton, spared by a judge who argued his 14-year-old victim appeared to ask for money in exchange for sex and "attempted to prostitute herself."

Hinton met the girl on a phone dating service called Partyline, his arrest affidavit said. She initially told him she was 19 but before hanging up told him her real age, she told police. On his second visit, he brought alcohol and condoms, police wrote.

Hinton snuck into the girl's home one night in December 2009 while her mother was working and had sex with the teenager, court records show. Hinton attempted another late-night liaison with the girl days later, only to be caught hiding in the closet by her mother, records showed. When found by her mother, Hinton told the woman he was 15, then changed his age to 16, she told police. Hinton initially told police he was 16, but finally admitted he was 30, police wrote.

Police charged Hinton with two counts of third-degree rape and one count of attempted third-degree rape. He posted bail after one day behind bars, and in July 2009 struck a deal to plead guilty to one count of fourth-degree rape with prosecutor Renee Hrivnak, who also handled the Richards case.

At sentencing, though, Hrivnak's bid to have Hinton serve a year in prison was thwarted by Judge John E. Babiarz Jr., according to a transcript of the hearing.

"As I read the presentence report, it appeared to me that she was the instigator of this sexual contact since she initiated her message on the phone party, or whatever they call it, party line," the judge said after interrupting Hrivnak as she described Hinton's acts.

Babiarz said he wondered whether authorities had sought to help the girl, or even charge her with a crime so Family Court could order counseling.

When Hrivnak tried to highlight the 16-year age difference between the rapist and victim, she said, "14-year-olds don't look like they're 30."

Babiarz, who has since retired, disagreed.

"Wait a minute," he said. "I had three daughters who had lots and lots of friends. They'd come over to the house for whatever, fun and games, young girls do when they're 13 or 14, and they look 13 or 14. But then prom night came along and maybe, let me tell you, big difference.

"I will not accept that a 14-year-old looks 14, because appearances can change," the judge said.

When Hrivnak said Hinton snuck into the house, Babiarz countered, "She snuck him in."

Hurley, who defended Hinton, told the judge that when young teenagers portray themselves as older, "the person gets lured in."

Hinton told the judge, "I may have been fooled but it was my mistake. I'm sorry."

Before pronouncing his sentence, Babiarz called the case "very, very troublesome" and reiterated that the state spent more time "furthering a prosecution instead of helping a troubled young woman," whom he called, "if not the instigator, at least a very willing participant" in what was "no forceable rape." Babiarz sentenced Hinton to one year of Level 2 probation, which requires monthly contact with a case officer.

"The record in this case demonstrates that he is simply not somebody who this state should waste resources on following when they could devote those resources to people who are truly a danger," he said.

The judge also noted that registering as a sex offender "will be a millstone that will hang around his neck for the rest of his life."

The fact that Richards never spent time in prison for his daughter's rape has generated outrage in Delaware and beyond. Many observers were disturbed that Jurden's sentencing order noted that Richards "will not fare well" in prison, an argument made by his defense attorney during the sentencing hearing.

Jurden's notation was listed as a mitigator to a tougher sentence for Richards, along with "strong family support and "significant treatment needs that must be met."

Her listing of mitigators in a section labeled "Notes" in her order was a practice other judges did not utilize in the cases similiar to Richards' that The News Journal reviewed, records show. Jurden, who presided over the sentencing in one of the other 15 cases, also listed several mitigators when sentencing a 27-year-old man to two weeks behind bars for having sex with a 14-year-old girl he met in a Wilmington park. Just as in the Richards' case, Jurden followed the prosecutor's recommendation at sentencing.

Of the 15 other cases, only once did a defense attorney mention the rapist's fitness for prison, court records show. In that case, which involved the bus driver who had sex with the middle school girl, Judge John A. Parkins Jr. did not react to the lawyer's concerns or note the suggestion in his sentence, and sent the rapist to prison for one year.

Some in Delaware's legal community have defended Jurden's sentence, arguing that Richards' sentence was not unusual. Court officials have said Jurden cannot comment.

On behalf of the Delaware Association of Criminal Defense Lawyers, Public Defender Brendan O'Neill and attorney Thomas A. Foley wrote that a prison sentence suspended for probation is "frequently the sentence imposed by all judges on the Superior Court for first-time offenders convicted of offenses of this nature."

O'Neill and others said several factors come into play, such as the facts of the crime, sentencing guidelines, input from the victim, a defendant's criminal and personal history, whether he has mental health or substance abuse issues, and the availability of reasonable alternatives to prison.

O'Neill, whose taxpayer-funded office defends those who cannot afford a lawyer, said in March that the state's handling of Richards' case might cause the public to be skeptical about "how a person with great wealth may be treated by the system."

O'Neill, responding to The News Journal's findings in similar cases, said Richards' sentence was "in line with the range of other rape 4" cases reviewed by the newspaper.

"Every case is different. Every sentencing decision includes a number of factors a judge must consider," O'Neill said.

Foley defended one of the cases reviewed by the newspaper, a 23-year-old man sentenced to six months in prison for having sex with a 13-year-old girl he met on Facebook. He said it's not fair to compare sentences in different cases.

Delaware justice, Foley said, "is not done in cookbook fashion."

While state law allows judges to sentence defendants up to 15 years in prison for fourth-degree rape, the crime has no mandatory minimum prison term. Guidelines set by judges and other top officials in Delaware's criminal justice system urge a sentence of zero to 30 months behind bars, or up to 22 months when the defendant accepts responsibility.

Prosecutors say child rape cases are difficult because evidence is often weak and child victims often make poor witnesses. In such cases, a conviction of fourth-degree rape is a victory because the rapist is branded as a felon and a sex offender and at a minimum will be monitored on probation, prosecutors said.

Biden, who has not granted requests for interviews on criminal justice issues in recent months, would not comment on The News Journal's findings. The Democrat, who is in the final year of his second four-year term, announced last month he would not seek re-election and would run for governor in 2016.

Biden spokesman Jason Miller issued a written statement that said rape "prosecutions are handled on a case-by-case basis based on their unique facts and circumstances, and prosecutors consult with the victim's family in every case."

Biden, in a letter written to The News Journal in April, defended the plea deal and sentencing that Richards received.

"This was not a strong case, and a loss at trial was a distinct possibility," Biden wrote.

While Richards was spared prison for violating his own toddler, other men who sexually abused children received prison time.

Robert Bollinger of the Waterford trailer park off U.S. 40 was a 24-year-old bus driver who became friendly with a 14-year-old student in 2008. They spoke on the phone, exchanged text messages and met in person, court records show.

That November, he picked her up a block from her home and drove her to a park off Possum Park Road near Newark, where they walked a trail, held hands and kissed. A few weeks later he took her to his mobile home, where they had sex in his bedroom.

He wrote a letter about his plans "for them to marry and have kids together," records show. When detectives interviewed Bollinger, he admitted having sex with the middle school student and writing the love letter.

Police charged Bollinger with one count of second-degree rape and four counts of second-degree unlawful sexual contact. In March 2009, though, he pleaded guilty to fourth-degree rape.

At his sentencing before Judge Parkins, prosecutor Brian D. Ahern sought a year in prison and read a letter from the girl's mother that said the girl's life had been "traumatized by this unspeakable act."

Public defender Robert M. Goff Jr. sought probation, pointing out that Bollinger "fell in love with this little girl," but when confronted by authorities confessed immediately. Goff also said Bollinger was beaten in prison while detained there for five months until sentencing and, as Richards' lawyer did, contended his client was "not prison material."

Parkins didn't acknowledge Bollinger's fitness for prison in his comments or written order but said he did not think he was a pedophile or a threat. Acceding to the prosecutor's wishes, Parkins gave Bollinger one year in prison, plus six months in work release.

"You manipulated a young girl, and I find that fact to be despicable," Parkins said. "I can't diminish that by simply saying, 'All right, you've been in jail since December. It's fine. You can go.' "

Hurley, the defense lawyer, said certain judges, such as now-retired Jerome O. Herlihy, are tougher on child rapists. While two of Hurley's clients avoided prison sentences for having sex with young girls, he pointed out that Herlihy gave Thomas J. Beggs, who gave alcohol to a 17-year-old girl before having sex with her, a sentence of 30 months – the guideline's maximum.

"Herlihy in child sex cases was a hammer," Hurley said.

At the Beggs sentencing, the girl's mother testified that "he stole my daughter's innocence." Prosecutor Diane Walsh asked that "the top of the guidelines be imposed, or more," noting that Beggs bought the booze, cleaned up the mess after the 17-year-old girl vomited, and then raped her.

Beggs apologized for his "mistake" and Hurley read letters from his relatives and friends that called him a hard-working man who was loyal to loved ones, a man who once pulled someone out of a burning car. Hurley sought a sentence "within the guidelines."

Herlihy's comments were brief but pointed, according to a transcript of the sentencing hearing. He wondered how someone with a clean record and a solid background "can do something so drastically wrong and out of character which has had a horrendous effect."

Herlihy presided over three of the 15 fourth-degree rape sentencings reviewed by The News Journal. He sentenced two defendants to prison. He ordered probation for the other, even though the prosecutor sought a year in prison. In that case, 38-year-old Juli B. Faunce of Claymont had sex on two occasions with a 14-year-old boy after inviting him to her home.

At sentencing, her attorney Patrick Collins said Faunce had mental health issues and had been in abusive relationships and "feels a great deal of remorse for her actions." Faunce explained that she was not "receiving the mental health care I needed at that time" and promised not to reoffend.

Hrivnak, the prosecutor, sought a year behind bars, arguing that Faunce "continually chooses these relationships that are bad for her, but now she's involved an innocent child."

Herlihy said the circumstances of the crime "suggest that some jail time is appropriate" but said he was giving her probation because her "need for treatment" outweighed the need to put her in a cell.

Herlihy said that each sentencing decision he made was based "on the individual" before him.

"You look at the circumstances of the offense, which includes whether there is a pattern and whether there's a potential of repetitive conduct," he said.

He also discouraged comparing one sentence to another, saying such analysis can be misleading because each case is different.

"We try to be fair and give the most appropriate sentence we can," Herlihy said. "We are human."

Contact senior reporter Cris Barrish at (302) 324-2785, cbarrish@delawareonline.com or on Facebook.

To understand if du Pont family heir Robert H. Richards IV received different treatment in his rape case, The News Journal compared his with others with similar characteristics: first-time convicts who were sentenced in New Castle County since 2008 on a single count of fourth-degree rape involving a minor. Using court and public records, The News Journal sorted through more than 1,000 sex offender cases to identify those similar to Richards. Of those, these are the 15 cases that matched the criteria.