Prosecutors over the decades consistently tell me that the courts handle “Indecent Exposure” cases much too leniently. The feeling is that “exposers” are really a serious breed of sex offender that get away with deviancy. Likewise, therapists also claim that persons engaging in public indecency are likely “untreatable.” Put another way, the thinking patterns by persons engaging in such activity are so hard-wired or ingrained that it is impossible to successfully treat them. Someone who engages in this contact will always reoffend.
A recent Oregon case appears to recognize this and gives legal ammunition that Indecent Exposure should not be a simple misdemeanor offense which it currently is. The court sentenced Mr. Althouse to life in prison without the possibility of parole. Mr. Althouse did not benefit from any treatment he received. While defense lawyers would argue that Mr. Althouse’s history cannot be correlated to that of all persons who commit Indecent Exposure, the example of this case can be used by those seeking harsher penalties.
Mr. Althouse had been convicted of three prior felony sex crimes, including first degree sexual abuse of his daughter in 1982. He received probation and got sex offender treatment. While in treatment, he admitted fondling his son. He was kicked out of treatment when his therapists concluded he “simply chose to maintain his dangerous patterns of deviant thinking.” Mr. Althouse’s probation was revoked, and he was sentenced to 5 years in prison. His troubles with the law had only begun.
- 1993 – After release from prison, Mr. Althouse used a ruse to gain entry to a motorhome where a 9 year old boy was alone. Althouse used force to have sexual contact with the boy. He was convicted of first degree sexual abuse and sentenced to ten years in prison.
- 2001 – Mr. Althouse was released from prison. He started walking naked in parks. He began exposing himself in public swimming areas, and masturbating in front of his bedroom windows.
- 2002 – Mr. Althouse was convicted of felony public indecency, and sentenced to four years in prison.
- 2006 – Mr. Althouse was released from prison. While on “post-prison supervision”, he violated his release terms by viewing child pornography in November 2006, walking naked in his neighborhood in 2007, doing yard work while naked in 2009, and walking naked around a school for hearing impaired children. He fled to Idaho, but was arrested. He admitted to several other naked walks to his parole officer.
- 2011 – Mr. Althouse was prosecuted for felony public indecency a second time . He was observed sitting naked on the side of a popular jogging path, one known to be frequented by children. He explained to police that he “had a sexual addiction and is aroused by sitting in public without his pants.”
Mr. Althouse appealed his life sentence without possibility of parole. He claimed his sentence was cruel and unusual punishment under the federal and Oregon constitutions.
This was a hard argument for the defense for several reasons: (1) the sheer number of priors; (2) his behavior escalated from family victims to strangers; and (3) his 2002 conviction could have resulted in a similar life sentence without possibility of parole, but the court showed mercy. Mr. Althouse was frequently in treatment. He often simply stopped going. Mr. Althouse used ”comparative” arguments that his sentence was excessive and therefore cruel when viewed against others.
Mr. Althouse asked the appellate court to consider “that public indecency is not as serious as some other sex crimes.” Mr. Althouse did not support this argument with any hard data, other than the statutory penalty structure for the offense. It is this writer’s anecdotal experience that some sex offenders that assault others have “started” their deviant history as “flashers.” The court simply said Mr. Althouse’s last conviction could not be viewed “in isolation”, and that he had a 30+ year history of transgressions. Some violent. Most scary.
This case is not surprising in its result, but what may be a direct consequence is law enforcement and prosecutor’s seeking legislative changes to make public indecency a felony for the first offense. Alternatively, the law may benefit from stringent probationary terms in all cases, including a sexual deviancy evaluation.
Lawyers often say “bad facts make for bad law.” It is my experience that many prosecutors believe that the crime of Indecent Exposure or public indecency is handled much too lightly. Mr. Althouse’s case certainly helps prosecutors with this argument.