There was public outrage when a Marion County judge decided not to send a convicted child molester to prison, but experts have said that however controversial this may seem it is not uncommon.
Jeremy Schwer a father-of-two from Indiana was spared prison time at the request of his estranged wife after pleading guilty to repeatedly molesting their daughter who was six years old at the time and stricken with cancer. But in this case the financial consequences to his family outweighed everything else.
He sexually abused the child in hospital as she endured chemotherapy and radiation to fight a cancerous brain tumor.
“I am sickened how this young girl has been failed twice by our judicial system,” one IndyStar reader said. The girl was failed not only by her father, she said, but also by the court. Another said Schwer’s sentence, which includes 12 years of probation, sends the wrong message to child predators.
But the judge’s decision was not all that uncommon, legal experts say, and it demonstrates the difficulties in sentencing someone when punishing the offender also could punish the victim.
Friends and family members argued in letters to the judge that imprisonment of the 41-year-old Indianapolis man could have detrimental economic consequences, not only on the defendant, but more importantly, on his family.
“It’s certainly a heinous offense, there’s no question about that,” said David Finkelhor, director of the University of New Hampshire’s Crimes Against Children Research Center. “There are three elements that are involved in punishment. There is the protection of the community. There is the deterrence of other possible offenders. And there is the justice for the victim. The question is, ‘Does justice for the victim outweigh the other needs?'”
In Schwer’s case, the financial consequences to his family outweighed everything else. His now-estranged wife asked the court not to send him to prison so that he could work to support their two young children — an obligation that Schwer’s attorney said he will fulfill.
More broadly, sentencing laws have moved away from imposing mandatory minimum prison terms and more toward giving judges discretion to decide on the punishment, based not only on the severity of the offense, but also on defendants’ individual circumstances, said Jessica Eaglin, a professor at the Indiana University Maurer School of Law in Bloomington.
Eaglin, who teaches federal sentencing laws, said the current trend “introduces a lot of opportunities for different judges to have different opinions about what constitutes mitigating and aggravating circumstances.”
Finkelhor said other factors that judges consider in determining a sentence are prior offenses, level of remorse and risk of reoffending. The recidivism rate for people who sexually abuse someone in their family is “relatively low,” he said, because the crime was enabled by the unusual level of trust and authority.
Outrage over Schwer’s sentence focused heavily on the judge.
Marion Superior Court Magistrate Steven Rubick agreed with the aggravating circumstances favoring a prison sentence, reminding Schwer in court that his daughter “will have trust issues for the rest of her life” and a void that will never be filled, “all because of you.”
But he also placed a lot of weight on the mother’s request.
“There is a temptation when one wears a black robe to believe wrongly that we always know what’s best,” Rubick said during the sentencing hearing Tuesday. “I’m not going to override the request of the victim in this case, trusting that she knows the circumstances of her life and the needs of her children better than anyone else in this room.”
Finkelhor, who has written several books about child sexual abuse and victimization of children, said situations that involve offenders who are allowed to continue to work to support their family are “relatively frequent” and are often contingent on good behavior.
“One of the key dilemmas in the father-abuser situation is that the economic consequences for the victims can be as bad or worse than the abuse sometimes,” Finkelhor said. “The family is suddenly thrust into poverty and destitution or homelessness or something like that.”
Finkelhor said the perspective of the victims and their family members also are taken into consideration.
“It’s important for people to realize that victims frequently are not that eager for their father or stepfather or uncle or grandfather to go to jail. Their priority is that they want it to stop. They want the person to apologize,” Finkelhor said. “The point of view of the child is an important one to take into consideration because they’ve already been harmed. If the punishment of the offender causes more harm to the victim, then that’s a very important consideration.”
Sandy Runkle-DeLorme, director of programs for Prevent Child Abuse Indiana, said reactions of abuse survivors can be very personal.
“We are prevention-oriented, so we don’t want to speak to punishment,” Runkle-Delorme said. “They need to be believed, and they need to be told that what happened was not their fault. Those types of messages are what we are trying to convey, but the best-case scenario is preventing it from happening in the first place.”
Jennifer Drobac, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis, said as long as certain safeguards are in place to make sure the abuse does not happen again, she does not believe Rubick abused his discretion.
“It’s very easy to say he should be locked up forever,” Drobac said. “The people calling for that, it’s certainly understandable.”
As part of Schwer’s sentence, he will be on GPS monitoring and will be required to submit to periodic polygraph testing and random searches of his home and electronic devices, according to court records. He will undergo treatment and register as a sex offender. Schwer also will very likely never see his children again, Rubick told him in court.
Schwer can’t be within 1,000 feet of school property, youth program centers, public parks and other places where children are present, and he cannot live within a mile of the victim or her family, whom he isn’t allowed to contact. He also is required to maintain full-time employment.
Schwer, who lost his job as an artist for an architectural firm in Indianapolis after his arrest last year, recently found another job, his attorney said in court.
He pleaded guilty earlier this week to child molesting, a Level 4 felony punishable by two to 12 years in prison. He was charged in April 2015 after his wife called the Indiana Department of Child Services. Their daughter, then 6 years old, told her mother that she had touched her father’s “peepeeluca,” the family’s word for private parts, according to court records. The little girl later told officials that her father also touched her “peepeeluca” and had her sit on his “cat tail.” The abuse happened multiple times, court records say.
Schwer’s wife filed for divorce shortly after his arrest. When they were married, she did not work so she could take care of their daughters, one of whom is a toddler.
During the hearing, Marion County Deputy Prosecutor Courtney Curtis said the case was the most “egregious” child molestation case she had ever seen. She said it is “unfathomable” that a father would take advantage of his daughter’s fragile state.
Curtis, who argued for a nine-year prison sentence followed by three years of probation, told IndyStar she “completely” disagrees with the sentence, but she understands that the judge was listening to the mother’s request.