Court Orders a Letter of Apology in Sexual Assault Case
“K.H-H” was a 17 year old juvenile male charged with two counts of Assault 4 with Sexual Motivation. He forced himself on a female acquaintance, “C.R.”, who attended the same high school. There was a second incident involving a different girl. The court adjudicated K.H-H. guilty involving C.R., but not guilty regarding the other girl.
When K.H-H. was sentenced, the state requested the court order K.H-H. to give C.R. a “sincere written apology.” The state defined sincerity as “meaning an admission that he did what he was accused of and…is sorry he put her in that position.”
K.H-H.’s defense attorney objected, insisting K.H-H. has the right to control his speech. The court ordered the letter of apology and that it be “approved by K.H-H.’s probation officer and the state.
K.H-H. appealed his adjudication and sentence. Regarding the apology letter, he argued such a letter violated his First Amendment right to be free from compelled speech. The Washington State Court of Appeals affirmed the sentence, finding the apology letter permissible under a federal case, U.S. v. Clark, 918 F.2d 843 (9th Cir. 1990), because the apology letter served a compelling state interest in rehabilitating juvenile offenders. The Washington State Supreme Court granted review of K.H-H.’s case, believing it involved a legal question never before addressed: whether a juvenile defendant could be ordered to write a letter of apology.
The Washington State Supreme Court, while acknowledging that a “forced apology involves making an offender say something he does not wish to say,” nevertheless did not recognize such a letter as compelled speech, because a “letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H-H. to recognize what he did was wrong and to acknowledge his behavior. Additionally, an apology letter recognizes the victim’s interest in receiving an apology from the perpetrator.” This was a 6-3 majority ruling.
There was a strongly worded dissent by Justice McCloud, indicating that government compelled speech by K.H-H. may involve an important governmental interest of rehabilitating a juvenile, but the government must “choose a narrowly tailored means” of achieving the compelling state interest. Justice McClound wrote “Compelling a false apology for a crime the defendant denies committing is far from the least restrictive means of achieving rehabilitation. In fact, it is probably the most ineffective way to achieve that result.”
To have a compelled, court ordered apology by someone denying the offense, which, in this case, would have to be approved by the probation officer and the state prosecutor, is not likely going to achieve the repentance sought by the court, i.e. a “recognition and acceptance of responsibility.” The court could have compelled counseling; that might have been a more likely agent for the sought-after change.
If you find yourself in similar trouble, or if you may be or have been charged with a crime, please contact Jan Olson at (206) 224-6691 direct.