A 19-year old Idaho man convicted of statutory rape was sentenced to five to 15 years in prison last week, but he will have that sentence suspended once he completes a one-year therapy program and agrees to celibacy before marriage.
Cody Duane Scott Herrera of Twin Falls, Idaho, received the unusual probation condition during his sentencing hearing after pleading guilty to the statutory rape of a 14-year-old girl.
After receiving an underlying sentence of five to 15 years in prison, Judge Randy Stoker suspended the sentence and opted to have Herrera complete a one-year therapy program in prison before being released on probation. But one of the terms of his probation is that Herrera cannot have sexual relations unless he is married.
“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married," the judge told Herrera.
Stoker said he decided on the condition after Herrera told pre-sentence investigators that he had engaged in sexual activities with 34 different partners. "I have never seen that level of sexual activity by a 19-year-old," Stoker said, according to the Twin Falls Times-News.
Herrera allegedly also had fantasies about sex with a 13-year-old girl and watches pornography depicting rape, according to prosecutors.
Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law, questioned the constitutionality of the decision. “I would suspect (a judge can’t do that),” Sanders told the Times-News. “I think it infringes on his constitutional rights.”
Sanders also mentioned case law that Herrera could use if he ever decided to appeal, saying he could likely win the appeal. One case she mentioned took place in Texas and ended up with the Supreme Court deciding that all citizens had the right to engage in sexual activity with another consenting adult in private.
Another case came out of Oklahoma after the state attempted to sterilize convicted criminals. The court determined that citizens had the right to procreate.
“There, the court said there is a right to procreate,” Sanders said. “In this particular situation, we seem to have an order infringing on (Herrera’s) right to procreate. A court can’t dictate how he decides to procreate.”
“Probationers already give up a lot, especially in terms of law enforcement monitoring,” Sanders said. “But how would you even enforce this? It seems to be quite intrusive if they can just bust into his bedroom to make sure he’s not getting it on."
But Twin Falls prosecutor Grant Loebs had a different view, explaining that judges are allowed to order things that might otherwise be legal, like abstaining from alcohol, which is a condition of many probations. “The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said.
“A judge’s purpose is to keep them from committing another offense,” Loebs stated. “A judge has the right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.” he said.