By Caleb Hutton
This story about a Whatcom County man who sexually assaulted a mentally disabled 18-year-old woman got a lot of negative reactions from readers who thought David Wayne “Bear” Pen, the defendant, didn’t get a harsh enough sentence.
Pen, 54, was ordered to spend 10 months in jail for assault in the fourth degree with a sexual motivation, a gross misdemeanor. He’d already served that time awaiting trial, so he was released from custody after entering his plea.
I spoke with Eric Richey, the prosecutor in the case, this morning. He explained how the case had progressed, and why he ended up agreeing to recommend the lighter sentence:
- When the victim was first was interviewed, she claimed it was a violent rape, with a lot of force used. (This was the information in the original probable cause statement, which I drew from in this week’s story.) Then the victim’s mother brought her to the public defender’s office, and the victim claimed she consented. She said because Pen offered to get her a kitten, she was willing to have sex with him. She’s impressionable, so Richey isn’t sure what the truth is.
- Richey also isn’t sure whether she’s even able to consent or not. Sometimes the victim acts very young mentally, but at times she appears very astute. Prosecutors didn’t think they could convince a jury, beyond a reasonable doubt, that she was not capable of consenting.
- Richey admits prosecutors “didn’t get a lot out of it.” Fourth-degree assault with a sexual motivation is almost nothing compared to the original charge of second-degree rape. But because the victim, who is also the only witness, gave two versions of her testimony, rape charges would have been difficult to prove to a jury. If the jury wasn’t convinced, Pen would have been let off the hook completely. Richey didn’t think it was worth the risk.
Also, as a legalese aside, prosecutors and defense attorneys can agree to a sentence of a certain length in a plea deal, but a judge has the final say and can choose to give a longer or shorter prison sentence after a guilty plea. In this case, Judge Steven Mura approved the sentence recommended in the plea deal. The maximum sentence allowed for fourth-degree assault with a sexual motivation is one year behind bars.
Edited at 12:45 p.m.
This reads like the prosecutor sympathizes with rapists. Where to draw the line is very simple….to non-rapists.
It’s not a matter of sympathy. Prosecutors and defense attorneys do their best to estimate what a jury is likely to do with a case and proceed accordingly. It’s easy to armchair quarterback cases without really knowing anything about the case or the law. But it’s not very helpful.
Fair enough defense of and by the prosecutor in this case.
Most of us critics had assumed that the case was a “her word against his” situation
and had also assumed it wouldn’t have been a slam dunk.
But to settle for ten months (time served if I’m not mistaken) is an insult to ALL concerned,
including the community.
Faced with similar evidence in the future, rather than slap the victim and the rest of us in the face, go ahead and PROSECUTE.
Even if it “would have been difficult..”
Emotionally however, I agree with the rest of you… he deserves much more than 10 months in jail whether or not it was violent, whether or not the girl could give consent. Its hard to believe that the prosecutor would agree to such a small sentence and I know it pulls at all of our heart strings as this could have been any of our sisters or daughters.
Logically and professionally, I see where the the prosecutor is coming from. It would be hard and maybe even impossible to get a jury to find him guilty after the victims testimony changed rather drastically. If he went for second-degree rape and the jury came back not guilty – what then? He would truly get off scot free. At least this way, this guy got SOME sort of punishment and will carry that on his record as a big bright red flag to anyone and everyone.
You have got to be kidding me. I understand the black and white structure of law, however this situation should have also brought to light the offenders mental status as a methodical predator. If I plan to kill someone, I could be prosecuted for Murder 1. If I accidentally kill someone, I could be prosecuted for anything other than Murder 1 being as I didn’t plan it out.
You mean to tell me that this sick SOB didn’t think that by taking advatage of a mentally disabled person he may get away with it because of the circumstances. I call BULLS@*t.
Bottom line is that he knew what he was going to do to a person he knew was more than likely unable to defend herself and her side of the story due to being disabled. This absolutely makes me sick to think that you just slapped this guy on the wrist and at the same time, explained to other predator’s how to get away with it. “Hey, if you want to get away with it, do it to a mentally disabled person.”
This guy not only committed one of the worst crimes you can imagine, but he took it to an entirely different sedistict level.
As a parent of a mentally disabled person, a little piece of me litterally just died reading this.
I’m not buying it. The mother felt the need for a babysitter for her 18 year old daughter thus the jury would have taken that into account and assumed the girl was not of a mind to give consent. The kitten is a give away. How many of you know a 18 year old who would agree to have sex for a kitten? Wasn’t the rapist in is 50″s. The prosecutor should have more faith in this community. Instead he let this guy skate. Shame on him!
Let me see if I understand this… He pled guilty to a gross misdemeanor and got time served. OK, if the Prosecutor would have gone ahead with the trial and lost, he would have been in jail for a longer period than the ten months he currently served. Are you following? Now, if the prosecutor would have won and Pen was found guilty, the people would have got the justice called for. Sorry, I still do not see how the people came out ahead and justice was served.
Scuse me???
You think the jury would be so lame as to think that an 18 yr old would agree to sex for a kitty? Even if she agreed, What was her IQ, What was her emotional age?
Damn I get tired of prosecutors deciding what the jury will return on verdict. The judge would agree to this? Wow! I’m ashamed of these people and wouldn’t vote for them if I was paid.
I’ve been on jury duty, will probably be again and this is a bad move by our court representatives.
We will have a chance again to vote for these crazies. NO WAY!!
As a prosecutor there is always a lot of explaining to do for the public. Unfortunately the prosecutor’s explanation is about as bunk as the 10 month sentence. He is 54. She is basically a minor and obviously has some problems and he tried to pay her.
SubtleAsBootToOnesFace I don’t understand the black and white structure of the law. I am always confused or upset when it comes to courts and it seems to me there has always been this huge grey area where anything and everything goes. From getting 50 years for shoplifting ( Lockyer v Andrade ) to OJ. I agree with everything else you said though, especially about the methodical, sadistic nature of David Wayne “Bear” Pen and that if he was some sort of guardian or babysitter over this girl than he must of been planning this.
Maybe the prosecutor will explain it to us again next time.