ANCHORAGE - A rural judge was wrong to banish a convicted child molester from the village of Kivalina, where the victim lives, the state Court of Appeals ruled in overturning the lower court's order.
The appeals court said Kotzebue Superior Court Judge Richard Erlich could have ordered James Booth to stay away from the victim. Booth also lives in Kivalina, which has no law enforcement, no probation supervision and no treatment programs.
The 2001 order that the molester, after serving time in jail, not return to the village for three years amounted to an unjustified banishment, the appeals court ruled.
Erlich had said the banishment was necessary for the safety of the then 15-year-old victim.
In a decision first issued in October 2002 and reaffirmed this month, the three-judge appeals panel disagreed.
Assistant District Attorney Windy East argued it would be impossible for the two people to completely avoid each other in Kivalina, a Northwest Alaska village of 377 people. Help from Alaska State Troopers or a probation officer, should the defendant disobey the order, was at best an airplane flight away, East said.
Erlich noted that the victim was severely psychologically damaged by having been sexually abused by a string of men since she was 9 years old.
According to the court file, the girl approached troopers in Kotzebue when she was 15 to complain that her 35-year-old boyfriend was in prison for having sex with her, while others who did the same thing with her were still free.
Among the other abusers she mentioned was James Booth, who admitted sexual contact with her when she was 14 and he was 44 but denied it included intercourse.
In a deal with prosecutors, Booth pleaded no contest to a charge of fondling in return for a six-month jail sentence.
Erlich added three years of probation to the sentence, and said that during his probation Booth was to stay out of Kivalina or any village of less than 1,000 people where the girl lived if the village did not have a law enforcement officer.
Defense attorney Michael Smith said that keeping Booth from the support of his family and community endangered his rehabilitation. He argued that a single police officer in a town couldn't make that much difference since he couldn't watch Booth 24 hours a day.
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