Court Asked to Permit Greater Sex Crime Terms

The California Supreme Court was asked Wednesday to clear the way for substantial increases in prison terms for rapists and other sex offenders.

A state prosecutor urged the justices to uphold an appellate ruling that allowed a San Diego man to be punished for a separate crime for each of three sexual penetrations that took place during a single incident--even though each lasted only a few seconds.

“This was not a single act, but three separate acts punctuated by violence,” state Deputy Atty. Gen. Nancy L. Palmieri said during argument before the court in Los Angeles. “Each represented a separate harm and outrage to the victim.”

But a lawyer for the defendant called the case “an outrage” and said allowing multiple counts to be charged for what really was a single act could result in unduly harsh penalties.

“No defendant should be subject to such horrendous liability for the conduct we have here,” said attorney E. Stephen Temko of San Diego. “We have to tell overzealous prosecutors they have charged too many crimes.”

The issue before the justices has resulted in conflicting rulings by appellate courts in recent years. The high court’s decision, due this spring, could have a significant impact on sentences for sexual assaults.

For example, a defendant otherwise facing a maximum of eight years for one count of rape could go to prison for 24 years if three separate penetrations took place during the incident.

Defense attorneys raise concern that if the justices permit a separate charge for each penetration, it will unfairly allow prosecutors to “fragment” a single sexual offense into multiple counts in order to obtain long sentences--longer even than the current 25-year minimum for first-degree murder.

Prosecutors reply that by law any penetration, however slight, is sufficient to constitute rape--and that multiple charges for multiple penetrations, even in close proximity, are a valid way of recognizing the harm they do to victims.

To hold otherwise would encourage offenders to commit an action numerous times without fear of additional punishment, prosecutors say.

In the case argued Wednesday, the defendant, Daryl Harrison, was convicted of three counts of forcible genital penetration in an assault in June, 1985, on a female acquaintance in San Diego.

Harrison denied the charges, saying he had stopped off at the woman’s residence to return a magazine on his way to work at a medical center. She had sought to entice him, he said, but when he declined, the woman began screaming that she was being raped.

At the trial, Harrison was convicted and sentenced to a total of 17 years--including an eight-year maximum for one count of genital penetration, four years for the two other penetration counts and a five-year enhancement (later set aside) for a prior conviction.

A state Court of Appeal, by a vote of 2 to 1, upheld the multiple charges of genital penetration, finding that each such act represented a new crime.

The panel’s dissenter warned that the ruling could lead to “absurd results” and that a better way to distinguish separate criminal acts would be to determine whether the defendant had a “reasonable opportunity to reflect” before renewing an attack.