Prosecutors question judge's dismissal of statutory rape charge

By Janice Gregorson

A district judge has dismissed criminal charges against a young Plainview man accused of statutory rape.

Olmsted District Judge Kevin Lund called his action "extraordinary" and "unusual" but warranted in this case.

Local prosecutors called it an improper application of the law.


Joshua Allen Schuchard, 20, was charged in March with one count of third-degree criminal sexual conduct for allegedly having sex with a teen-age girl beginning in February 2000. At the time, Schuchard was 17. The girl was 14. She became pregnant in May 2001 and gave birth to a daughter in February.

Schuchard's attorney, Robert Rochford of Wabasha, requested that the charge against Schuchard be dismissed for lack of probable cause, or on grounds that the venue was improper. He also asked the court to dismiss the complaint on the court's own motion in the interest of justice.

Lund heard arguments on the motions during an evidentiary hearing in April and dismissed the charge in a ruling dated July 24. He denied the motion to dismiss for lack of probable cause or that it was charged in the wrong county. But he granted the motion to dismiss on his own motion.

In a memorandum attached to his order, Lund said the case has "unique and compelling" circumstances.

Lund said third-degree criminal sexual conduct has come to be known as "statutory rape," which has been considered a crime since the 13th century. Young girls and boys, he said, are considered incapable of consenting to sexual intercourse because they lack judgment and an understanding of the possible long-term consequences.

Out-of-wedlock pregnancies might no longer carry the shame and embarrassment they once did, Lund said, and that might have led to sporadic enforcement of the statute. But, he said, that doesn't make the crime any less a crime.

Lund also said Schuchard admitted to having sex with the girl before her 16th birthday and knew it was illegal.

Lund said the girl and her mother opposed charging Schuchard; the girl and Schuchard remain a couple and are raising their daughter.


Lund said state law empowers judges to dismiss charges in certain cases, and "it provides, in effect, a safety valve for the justice system, a remedy founded in the good judgment of the trial judge privy to all of the facts and circumstances of a given case."

Dismissing the charge would do more good than harm, Lund said.

County Attorney Ray Schmitz said the decision is not appealable to a higher court.

"We are concerned," Schmitz said. "The Legislature has defined this as a crime, and the judge has inserted his judgment for that of the Legislature."

Neither Schmitz nor Jim Martinson, who heads the criminal division of the county attorney's office, can recall a criminal case being dismissed under that statute.

Martinson said it is not unusual for victims to oppose the filing of criminal charges. It occurs frequently in cases of domestic assault. But, he said, that doesn't make it less of a crime.

The prosecutors said that charging decisions are based on laws and that value judgments, such as that made by Lund, shouldn't be considered in the charging process.

There should be a safety valve to protect people from prosecutors who abuse their discretion, Schmitz said, "but this is a misapplication of that standard."


During the most recent legislative session, Schmitz said, the Minnesota County Attorneys Association suggested modifying the statutory-rape law; lawmakers rejected any changes. Schmitz said the association will continue the discussion.

"This issue has arisen in other cases around the state, but I'm not aware of any such case where the charges were dismissed (by a judge)," he said.

The Legislature has the authority to make laws, and the county attorney's office has the responsibility to charge people under those laws, Lund said. But, he said, the judicial branch has the power to dismiss criminal charges in the interest of justice.

If Schuchard were convicted, Lund said, he would have faced probation, registration as a sex offender, restrictions on seeing his girlfriend and daughter, yearly probation fees of $925 and sex-offender treatment expenses.

The only effect on prosecutors, he said, is that they won't get a conviction based on a "mechanical application of the statute" without regard to the wishes of the victim, her mother and law enforcement.

"This is an extremely complex case with no easy answers," Lund said. "This is neither an easy nor a popular decision but recognizes the reality of the situation these two young people and their daughter find themselves in."

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