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.