PHOENIX -- People charged with rape are not eligible for bail, even if prosecutors cannot prove they are an ongoing danger to the community, the state Court of Appeals ruled Tuesday.
The judges acknowledged that the Arizona Supreme Court concluded earlier this year that people charged with sexual conduct with a minor cannot be automatically denied bail.
But appellate Judge Jon Thompson, writing for the unanimous court, concluded rape is different if for no other reason that, by definition, the victim has not consented. And what that means, Thompson wrote, is that despite the Supreme Court ruling, "sexual assault remains a non-bailable offense.''
Michael Freeman, an attorney for one of the men involved in this case, said there will be an appeal to the state's high court.
The ruling involves two separate cases out of Maricopa County, one against Marlin Henderson and the other against Guy Goodman. Each was charged with sexual assault -- the legal term for rape.
In each case, a trial judge scheduled a hearing to determine whether it was proper to hold the defendant without bail. And in both cases, the judge found proof evidence and presumption great that the defendants had committed the crime.
But in both cases, the judge found the state had not proven by clear and convincing evidence that the defendants were an ongoing danger, either the the community or the victim. Bail was set for $70 for Goodman and $50,000 for Henderson.
Thompson, writing for the appellate court, said that was a mistake.
He said the Supreme Court ruling was based on the fact that the crime involved there was sexual conduct with a minor. And Thompson said that charge includes situations where the victim could be a teen who actually consented to the contact.
"Sexual assault is not a crime like sexual conduct with a minor which could potentially include consensual situation and which, therefore, may involve a defendant who is not a danger to the community,'' the appellate judge wrote. "Unlike sexual conduct with a minor, lack of consent is an element of the crime of sexual assault.''
And what that means, Thompson said, is a hearing is not necessary -- or even appropriate -- to determine if someone charged with rape is a danger to the community or the victim, or is entitled to be released on bond.
"The non-consensual nature of the crime fulfills the requirement for finding inherent dangerousness,'' he wrote.
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