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Will girl's rape-claim reversal clear teen?

February 5, 2009 12:35 am


Prosecutor Olsen EnrightDelise2.jpg.jpg

Attorney Enright


A team of attorneys is asking the Department of Juvenile Justice to release a former Aquia Harbour teen they say was wrongfully convicted of rape and is listed on the state's sex offender registry.

The effort by the Innocence Project of the University of Virginia Law School and JustChildren, a child-advocacy group, is supported by the alleged victim's mother, who wants to correct what she considers a miscarriage of justice.

"We just need to make things right," Michele Sousa said in a recent interview.

Sousa said she returned home from work on June 4, 2007, to find the 15-year-old boy inside her Aquia Harbour home and her 14-year-old daughter getting dressed in the girl's bedroom.

Sousa initially believed her daughter had been sexually assaulted and immediately contacted the Stafford County Sheriff's Office. But three months after the boy was convicted of rape and breaking into her home, her daughter said she had lied about the incident because she feared getting into trouble.

As soon as Sousa learned that--on Thanksgiving weekend in 2007--she contacted a lawyer, who advised her to contact the boy's attorney. His attorney asked her to provide a notarized statement from her daughter, which she did.

In the May 23, 2008, handwritten statement, the girl states: "[The boy] didn't rely rape me in fact we did it befor. [He] was a friend of mine befor this even happend. Me and [the boy] where good friends, but now it just seems that I lied about [him]. Now I will never forgive myself. [He] didn't realy come in by himself, I let him in."

The Free Lance-Star is not naming the boy or girl because of their ages and the nature of the charges. Their parents' surnames are different from theirs. Both families have since moved from Stafford.

The parents agreed to discuss the case publicly in an effort to clear the boy, who has been in state custody for at least 17 months.

Neither Stafford Assistant Commonwealth's Attorney Eric Olsen, who prosecuted the boy, nor Denise Rafferty, who was the court-appointed defense attorney at trial, would discuss the case.

Olsen said he was aware of pending action in the case. He agreed to answer only general questions about juvenile prosecutions and the Stafford office's policies.


The girl was a special-education student at the time of the incident and was classified as "borderline" mentally retarded, her mother said. She has had noticeable physical problems with both her gait and eyes since birth, physical challenges her mother attributes to a form of cerebral palsy.

The boy has no physical handicaps. He was enrolled in special-education classes early in his schooling but resisted staying in them, according to his father, Edgar Dulaney. School records from Spotsylvania and Stafford counties show the boy consistently failed the annual Standards of Learning tests.

The boy's IQ is only seven points higher than the girl's, according to information from Sousa and records from the juvenile justice system.

Those facts are germane because a court transcript shows Olsen prosecuted the case from the standpoint that the girl lacked the ability to consent to a sexual relationship.

"The commonwealth's theory in this case was physical helpless [sic] and mental incapacity," Olsen said during a September 2008 Stafford Circuit Court hearing in which the boy's then-attorney, Joseph T. Brown of Fredericksburg, sought to win his release.

The boy's parents had hired Brown after Rafferty made an unsuccessful appeal to introduce the girl's recantation.

The judge denied Brown's motion, saying his court did not have jurisdiction to decide whether the boy should be released. The family then contacted the Innocence Project.

Sousa and the attorneys now representing the boy said Olsen met the girl, but never interviewed her, investigated her abilities or looked into her background. The attorneys and the boy's father also said neither Olsen nor Rafferty investigated or presented to the court any information about the boy's limitations.

Upon receiving custody of him, Department of Juvenile Justice workers assessed the boy's intellectual abilities and evaluated him psychologically.

They noted that he "lacks normal assertiveness skills," according to information provided by his current attorneys, Deirdre Enright, director of the Innocence Project at the University of Virginia Law School, and Andrew K. Block Jr., legal director of JustChildren, a program of the Legal Aid Justice Center in Charlottesville.

The girl has been described in evaluations as "overly aggressive with poor impulse control."

If the situation involving the boy and girl constituted any crime at all, it would be "at most" carnal knowledge, a misdemeanor, Block and Enright said. That law addresses sexual contact between a victim between 13 and 15 years old and a perpetrator less than three years older and "presumes a certain lack of capacity on both parties," Block said.

Sousa said since learning what actually happened, she doesn't support any criminal action.

The mother said she believes law-enforcement officials felt sorry for her daughter because of her condition and were "more forgiving of facts with her."

She also believes race was a factor. Her daughter is white; the boy is black.

But Sousa said the outcome of the case does not serve her daughter or the interest of justice, which is why she is trying to clear the boy's name.

"The fact of the matter is she needs to learn she needs to be honest and not do things that hurt other people," Sousa said of her daughter.


Two weeks after the incident, Edgar Dulaney and his wife were notified by the prosecutor's office that it would seek to try their son as an adult. He said he was later told his son faced 25 years in an adult prison.

Knowing his son's gentle demeanor, age and that he had never been in trouble before, Dulaney said he didn't want him in an adult prison. So when Rafferty recommended he plead guilty instead, Dulaney said he saw no alternative despite complete confidence in his son's innocence.

"He was just 15 then. I said, 'We'll just take the deal and then I'll fight it after taking the plea.'"

On Aug. 22, 2007, the boy, who by then had turned 16, pleaded guilty to rape and breaking and entering. In exchange, prosecutor Olsen dropped an abduction charge and the possibility of adult prison but did ask that he be required to undergo sex-offender treatment and be placed on the sex-offender registry.

Teens convicted of sex offenses as juveniles are not automatically required to register as sex offenders. By law, the prosecutor must request it and a judge approve it.

On Sept. 19, 2007, the boy was given an "indeterminate" sentence and ordered both to undergo sex-offender treatment and register as a sex offender.

He is currently housed in a Department of Juvenile Justice facility.


On Jan. 22, Block and Enright sent a letter asking Department of Juvenile Justice Director Barry R. Green to release the boy.

They outlined the steps they have taken to investigate his family's claims of his innocence, the support of Sousa and her daughter, and how the case moved through the Stafford justice system.

"We're not asking him to do anything he doesn't have the authority to do, regardless of [the boy's] guilt or innocence," Block said.

After taking custody of him in the fall of 2007, the Department of Juvenile Justice classified the boy as a "major offender" and set his term of confinement at between 18 and 36 months. That makes March 19 the earliest possible release date without the agency's director intervening in response to the attorneys' request.

But Block said Green has the discretionary power to release the boy immediately, absent any court action.

"Even though the Department of Juvenile Justice is our first step, it's not that we're laying the blame for any of this at their feet," Block said.

Green said this week that it is standard for him to periodically review the case of any youth classified as a major offender and that he routinely does it as an early release date approaches. If the youth has successfully completed any programs he or she was required to take part in and has everything in place for any assistance needed after release, then the department's practice is to work toward release.

"For any of the kids we have, our goal is not to incarcerate them any longer than need be," Green said.

Though he is powerless to deal with issues of innocence and would not discuss details of this case, Green said he would review it.

"I will give this an honest look. If he's either completed or amenable to completing whatever requirements there are within the community, we would not have a reason to hold him," Green said.

Enright and Block said they are working for the boy on three fronts.

First, they hope to get him released from custody. Next, they want to clear his record of the convictions.

Enright, her investigator and students in her Innocence Project clinic are working to craft what's known as a habeas corpus petition, a legal appeal raised on constitutional grounds.

This case, at a minimum, will include an argument that the boy had ineffective counsel, Enright said.

Finally, the attorneys want to get the boy's name removed from the sex-offender registry.

"In a lot of ways, the registry is what has the potential to really ruin his life, if we haven't already," Enright said.

Pamela Gould: 540/735-1972

Key dates in the former Aquia Harbour teen's case. June 4, 2007--Encounter between girl, 14, and boy, 15, at Aquia Harbour. June 7, 2007--Boy formally charged with rape, abduction, and breaking and entering. June 18, 2007--Stafford Commonwealth's Attorney's Office notifies boy's parents of its intent to prosecute him as an adult. June 28, 2007--Defense attorney Denise Rafferty assigned to case. Aug. 22, 2007--Boy pleads guilty to rape, breaking-and-entering charges. Abduction charge is dropped. Sept. 19, 2007--Boy sentenced, ordered to complete sex-offender treatment program and register as sex offender. Nov. 24, 2007--Girl tells her mother, Michele Sousa, she lied about the incident. Nov. 28, 2007--Michele Sousa contacts an attorney for advice. December 2007--Defense attorney Rafferty learns the girl recanted her story. March 2008--Rafferty, the girl and her mother appear in juvenile court on defense motion to set aside verdict. Judge denies it for procedural reasons. July 2008--Attorney Joseph Brown, hired to represent the boy, petitions juvenile court judge to find error in fact in case, based on the recantation. Judge denies motion. Sept. 19, 2008--Brown's appeal of juvenile court ruling heard in Stafford Circuit Court. Judge denies motion, saying his court does not have jurisdiction. December 2008--The Innocence Project at the University of Virginia Law School and JustChildren of the Legal Aid Justice Center agree to represent boy. Jan. 22--Innocence Project Director Deirdre Enright and JustChildren Legal Director Andrew K. Block Jr. send letter to Department of Juvenile Justice Director Barry R. Green asking him to release boy.

A Dec. 8 Virginia Crime Commission report shows that the vast majority of law-enforcement officials surveyed--with the exception of prosecutors--support changing Virginia's system of assigning cases against juveniles.

Currently, by statute, teens charged with certain felonies are automatically transferred to adult court for trial. For the other charges, including those brought in the Stafford County case, the prosecutor has the discretion.

On the question of giving circuit judges the ability to send juveniles back to juvenile court, 93 percent of chief public defenders, 84 percent of circuit judges, 77 percent of court service unit directors, 53 percent of juvenile-court judges and the director of the Department of Juvenile Justice supported the move. But 81 percent of prosecutors oppose it.

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