Justice denied in sex-crime cases?
Monday, October 16, 2006
By: Pete Alfano - Fort Worth Star-Telegram

Dewhurst proposal would toughen penalties

The e-mail was three pages long and addressed a litany of issues. Its tone was alternately conciliatory and threatening, repentant and accusatory. For Rhonda Kuykendall, it was a chilling reminder of her childhood and the risks inherent in advancing her cause.

She says that the man who sent the e-mail on Aug. 24 sexually molested her and her two sisters in 1981 when the girls were 10, 11 and 5 years old.

Mark Phillip Turner, now 60, writes that the two older sisters "were truly victims, and for that I am truly remorseful and deeply sorry for what occurred. ..."

But he also refers to his relationship with the two girls as "consensual."

He disputes some of the allegations about him posted on TheirVoice.org, a Web site Kuykendall launched to protect victims of child sexual assault, and to which Turner sent the e-mail. He threatens legal action if corrections are not made.

And yet, he ends his missive with a courteous "Thank you for your time."

Kuykendall isn't appeased by his e-mail confession.

She feels violated all over again, because Turner found a way to reach her.

Turner's e-mail has reaffirmed her goal: Change Texas law and eliminate the statute of limitations for sexual assaults against children. Currently, Turner cannot face charges for the sexual offenses Kuykendall alleges he committed against her and her sisters because the statute of limitations in Texas has expired.

Turner is a registered sex offender who has been imprisoned four times in three states for offenses involving minors. Under an old Texas mandatory release law, he was freed July 7 and sent to a halfway house in El Paso. He had served 15 years of a 40-year sentence for inducing "sexual performance by a child," in this case a 16-year-old girl.

Now he is being held at a facility in Middleton, awaiting transfer to Huntsville, having committed a technical violation of his early release by accessing the Internet. He used a computer in a Texas Workforce Commission office in El Paso to set up an e-mail account and send his letter to Kuykendall's Web site.

A spokeswoman for the Texas Department of Criminal Justice says Turner will lose his accrued good time and continue his original sentence. She added that he was eligible for parole in August, but likely forfeited that opportunity when he violated the terms of his early release.

Nonetheless, Kuykendall doesn't rest easy.

And she and her sister already know that time doesn't heal all wounds.

"The pain of a childhood assault doesn't go away," Kuykendall says, "so why should time allow [the assault] to go away?"

That argument is at the heart of an emotionally charged debate not only in Texas, but in many states across the country where stories about the sexual molestation of children and minors seem to make headlines almost daily.

Whether it involves a celebrity such as pop icon Michael Jackson, members of the clergy, or women such as Kuykendall and Traci Freeman -- married moms living in Houston suburbs -- child molestation cases touch the lives of not only the victims, but also law enforcement authorities and elected officials.

Children who have been sexually assaulted have 10 years from their 18th birthday to build a case against an alleged predator because children often suppress sexual abuse until they are adults. The exception is if DNA is collected at the time of the assault. Then, there is no time limit.

But there was no DNA testing when their parents sent Kuykendall and her sisters to pose for Turner, first to his apartment in Pasadena, Texas, and later to Lubbock. He promised the parents he would launch the girls' modeling careers.

"We didn't come forward," Kuykendall says, "but me and my sisters never forgot. We knew what happened to us. It was just too much to re-enter that dark world."

Tougher laws urged

A listing on the American Prosecutors Research Institute Web site shows that the statute of limitations for sexual offenses in general, and specifically against children, has many permutations and varies widely in every state, from no time limit to 10 years.

But there is a trend toward extending the statute, or eliminating it, and TheirVoice and the Texas Association Against Sexual Assault are calling for tougher laws in Texas.

So is Lt. Gov. David Dewhurst, who is campaigning on his "Texas Children First" plan, which would ramp up the punishment for sexual predators.

Provisions include a mandatory minimum sentence of 25 years and lifetime monitoring for those who commit a violent sex offense against a victim younger than 14; the death penalty for offenders convicted of two violent sexual offenses against a victim younger than 14; and an increase in the current statute of limitations from 10 to 20 years from the time a child turns 18.

Maria Luisa Alvarado, the Democratic candidate for lieutenant governor, says she supports "harsher penalties for child predators" but adds she would want to see more data before formulating a policy.

Children's advocates generally applaud Dewhurst's plan, but they still want the statute of limitations eliminated entirely. A bill to do so was introduced by state Rep. Debbie Riddle, R-Houston, in the last legislative session but did not make it out of subcommittee.

The debate was passionate. Opponents are not against children's rights, but are concerned about the rights of the accused. But Riddle says, "As a mother and grandmother I just didn't think it was right, or fair, for people who have harmed or molested children to get a walk because time has run out."

Opponents contend that eliminating the statute will put more innocent people in prison.

"We opened the floodgates over the hysteria of crimes against children in 1989, and it peaked in 1997," says attorney Keith Hampton of the Texas Criminal Defense Lawyers Association. He was referring to several high profile murder and abduction cases involving children, among them 9-year-old Amber Hagerman in Arlington in 1996.

"Now, we are in the heights of another hysteria. It's possible to be tried and convicted on the hazy recollection of childhood days.

"We have more innocent people sitting [in prison] on sex offenses than any other offense. Every male in this country is wide open, and God help him if a 5-year-old points a finger at him."

Dewhurst, in a telephone interview, characterized Hampton's remarks as "silly."

"I've said it before, that I don't want to see one innocent person accused or convicted of a crime they didn't do," he says. "But we've got thousands of unsolved sexual crimes against children, and we as a society need to put our kids first."

Sexual assault against children has raised awareness of the statute of limitations. Some might ask why anyone who has committed a crime -- whether it was fraud, robbery, or child molestation -- would be able to escape prosecution because of an arbitrary time limit.

"A sense of finality and fairness," says Fred Moss, law professor at Southern Methodist University. "When someone is charged with a crime, is it fair to come after them 15 years later, to possibly put innocent people on trial, subject them to the risk of prison?

"At that point, the ability of a person to defend themselves may be impossible."

Hampton offered an example. "If you are accused of touching a child last Tuesday, you can easily say, 'I wasn't with the child,'" he says. "But what if someone says, 'I'm now 30 and you touched me in 1985.' How can you defend yourself against that?"

One of the precepts of the statute of limitations is that over time memories fade, witnesses die or are unavailable, and evidence is lost. People should not be subjected to a lifetime of fearing legal reprisals and allegations that may be motivated by greed, revenge or jealousy.

Moss acknowledges, however, that because state lawmakers set time limits for different crimes, and can be influenced by public opinion, or what he calls "the crime problem du jour," statutes of limitation are fair game for discussion.

And because sexual assault often leaves lifelong scars and is violent in nature, there are those who believe that it should be treated like murder.

One recent example is Will Hallman, who came forward in 2003 and accused Wirt Norris, a former Olympic diving judge and prominent Fort Worth real estate agent, of molesting him when Hallman was only 12. The case revealed that Norris may have abused many more children over the years, but Hallman's fell within the statute of limitations.

Norris eventually pleaded guilty and was sentenced in 2005 to 10 years' deferred adjudication, because he was 77 years old and the judge did not believe he could survive in jail.

Hallman, in his early 20s, has said he suffered from depression, drug use, and attempted suicide.

State Rep. Charlie Geren, R-Fort Worth, cites the Norris case as the primary reason he was persuaded to support efforts to eliminate the statute of limitations for child molestation.

"It took one brave kid to come forward, someone with a lot of courage," Geren said. "And we need to do anything we can" to protect children.

Law enforcement authorities say that if the statute were lifted, they would not go forward with a case unless there is evidence or corroboration.

"The difficulty you always face if an offense took place 20 or 30 years ago is proof issues," says David Montague, a senior staff attorney for the Tarrant County district attorney. "I think overall, [eliminating the statute] would not have much impact. We could go for one or two more cases a year.

"But we have some current cases in which we wish we could prosecute for an older case, because the older case is stronger."

Molestation allegations

The caller wanted to talk to 5-year-old Traci Freeman. But her two older sisters already knew what Mark Phillip Turner wanted. Each had been flown separately to Lubbock, where, they said, Turner molested them. Yet they never told their parents, or even each other.

The oldest sister (who died of a brain tumor last year and whose name Rhonda Kuykendall prefers not to divulge) told her mother to pick up the extension and listen in on the conversation with Traci.

"He was telling me he wanted me to have sex with boys my age, and with men," Freeman says.

When the call ended, so did Turner's relationship with the three girls he had promised to make models.

The girls heard their mother screaming. She told them she would have Turner killed.

But the painful reality is that the girls' parents -- who were separated and had a stormy relationship -- never took them to the police to file complaints of child molestation against Turner.

Kuykendall, now 36, says her father said he never knew the extent of what his daughters were subjected to until two years ago. "He said, 'I thought your mother had it taken care of,'" she says.

But his new wife is the one who took the girls to a doctor several years later to report the crime. Kuykendall has the doctor's notes and was under the impression that the doctor would have filed a police report, but the matter was not pursued.

None of the girls received intensive counseling after their ordeal with Turner, who in his e-mail denies taking pornographic photos of the sisters. The spokeswoman for the Department of Criminal Justice says interview requests are not generally accepted for prisoners being held in transfer facilities. There is no timetable for when Turner will be sent back to Huntsville.

Despite his denials, Kuykendall and Freeman have vivid memories of posing for him.

"He said he needed to take 'goof shots with your clothes off,'" Kuykendall says. "We were in a hotel room, and I was scared.

"He got mad at me and said that if I told anyone, it would be my fault. 'You wanted to be a model, and this is what models do.'"

Freeman says Turner made her remove her clothes and lie on a bed. "He wanted me to cry," she says. "He was yelling and screaming at me, but I wouldn't cry. Then he told me to go back and put my clothes on and leave."

The sisters have their stories of abuse and evidence that, at the very least, they knew Turner.

Kuykendall says Turner signed a scrapbook for her, inscribed "love you pumpkin."

He gave the girls mementoes of their visits. Kuykendall says she kept her plane ticket. There are papers Turner signed at the Lubbock airport as the authorized adult meeting a minor traveling alone.

But all of this remained the girls' secret.

More than 20 years passed before the sisters talked to one another about what Turner had done to them. It was 2004 when they first learned he was a convicted felon. They went to the Pasadena police with their story and their evidence, but they were told it was too late.

All three sisters married as teenagers and had children. Kuykendall and Freeman are trying to live normal lives.

Freeman, who is 31 and works for Halliburton, has a 15-year-old son. Her deceased sister is survived by her husband and three sons.

Kuykendall, who has an 8-year-old son and 10-year-old daughter, emerged as the activist among them. When she became aware of the statute of limitations in 2004, she formed TheirVoice, a nonprofit organization.

She has taken her cause to radio and television stations, the print media, conferences, meetings and the floor of the Texas House of Representatives.

"I have a dog in this hunt," she says. "When you stop one child predator, you're saving untold victims."

The TheirVoice Web site has a petition calling on Texans to support their group's Texas Predator Prevention Act of 2007. Kuykendall says she has several thousand signatures.

She hopes that the bill will be reintroduced in the next session of the Legislature and that perhaps the e-mail Turner sent will help change some opinions.

"I told her [the e-mail] was the best thing that could have happened," Freeman says.

Lingering pain

Rep. Riddle has a plaque with a particularly poignant saying:

"When you cry tears, I taste salt."

"I tasted a lot of salt in the last session," she says.

Subcommittee hearings over the legislation she co-sponsored to eliminate the statute of limitations were emotionally draining, she says. So it is unlikely Riddle will carry the bill into the next session, although she says she will continue to support it.

The statistics alone make a compelling argument. The Texas Department of State Health Services says that as of 2003, there were 45,000 registered sex offenders in Texas.

The National Crime Victims Research and Treatment report in 2000 said 250,000 children are sexually assaulted in Texas every year. And yet the Texas Department of State Health Services Council on Sex Offender Treatment estimates that only 20 percent of sexual assault crimes against Texas children are reported.

But defense attorney Keith Hampton is skeptical of the numbers.

"We paint with too broad a brush," he says. "The quintessential child offenders who are absolutely in love with 7-year-old kids ... everyone wants [them] off the street," says Hampton, who adds that these sexual predators are identifiable, "a different breed of cat."

"We can fine-tune [the law] and ensure protection for those who are falsely accused. Just wiping out the statute of limitations and pretending it will make children safe is false."

Hampton says that he has handled cases in which the accused was clearly guilty, but also cases in which the victim was not the child, but the accused.

"I just had a call from a woman who wanted to recant her testimony," he says. "She said, 'Yes, I was molested, but by my uncle. He told me something bad would happen if I told.' So the guy [she did accuse] is still in prison."

Accounts like these are weighed against recollections of childhood sexual abuse and the lingering psychological pain.

Kuykendall says she doesn't consider herself "cured or 100 percent" even after 20 years of marriage.

Her sister Traci says she was the one who acted out the most.

"I used drugs and alcohol, sneaking out and not coming home. I was around 12 years old when I went to a toga party and came home drunk," she says. "I popped my mom's pain pills and mixed them with alcohol. I was probably 16 when I tried to OD and commit suicide."

Those memories may be indelible, but the sisters want to ensure that time will no longer be on the side of those who sexually abuse children.

http://www.theirvoice.org/; National Crime Victims Research and Treatment Center, www.musc.edu/cvc; Council on Sex Offender Treatment, Texas Department of State Health Services, www.dshs.state.tx.us/csot

Statute of limitations

The statute of limitations is the maximum period of time that legal proceedings can be brought for filing a civil lawsuit or criminal complaint. The deadline varies, depending on the lawsuit or crime. Some examples of the statute of limitations in Texas:

Criminal actions

Murder/manslaughter, None

Indecency with a child, 10 years from the victim's 18th birthday

Arson, 10 years

Theft, burglary, robbery, five years

Kidnapping, five years

Civil actions

Fraud, debt, four years

Wrongful death, (for example, medical malpractice) two years

Libel/slander, one year