Aug. 18, 2022 – A judge’s statement that prison time for an Amish man convicted of sexual assault was necessary to send a message to the Amish community does not entitle the man to a resentencing, the Wisconsin Supreme Court has held.

In State v. Whitaker, 2022 WI 54 (July 5, 2022), the court held that nothing in the record showed that the judge gave the defendant a harsher sentence solely because of his religious beliefs or his association with the Amish community.

Justice Jill Karofsky wrote the majority opinion. Justice Patience Roggensack wrote a concurring opinion, which Chief Justice Annette Ziegler joined. Justice Rebecca Grassl Bradley and Justice Brian Hagedorn also wrote concurring opinions.

Thousands of Assaults

Westley Whitaker, who is Amish, sexually assaulted three of his sisters on an almost daily basis between 2005 and 2007. Whitaker was 12 years old when he began assaulting his sisters.

Whitakers’ parents and other members of the local Old Order Amish community became aware of the assaults at some point between 2005 and 2007. Community elders attempted, in some fashion, to stop the assaults but were unsuccessful.

Nobody reported the assaults to the police or sought help from outside the community.

Confession and a Plea

Whitaker confessed to the sexual assaults in 2017. The Vernon County District Attorney charged him with six counts of first degree sexual assault of a child.

Whitaker pled no contest to one count of first degree sexual assault of a child; the other five counts were dismissed and read in.

Sentencing Arguments

At sentencing, the victims asked the circuit court to impose a prison term of two to five years of confinement. The state argued that given the seriousness of Whitaker’s crimes, the court should sentence him to a six-year bifurcated prison sentence.

Whitaker argued that he should serve no prison time and not be placed on probation, given his remorse and the fact that he’d confessed after one of his sisters confronted him.

Whitaker also cited the conservative religious culture he’d been brought up in, one in which discussion of sex was taboo. That taboo, Whitaker argued, had skewed his understanding of puberty.

Whitaker also pointed out that adult members of the community were aware of his assaults on his sisters and counseled in favor of not informing the outside world about the assaults.

‘That’s Not Sufficient’

The circuit court sentenced Whitaker to a four-year sentence: two years of initial confinement followed by two years of extended supervision.

In pronouncing the sentence, the court noted the relevant factors under State v. Gallion, 2004 WI 42, 70 Wis. 2d. 535, 678 N.W.2d. 197, including punishment and the deterrence of others, and said that hopefully the sentence would deter others in the Amish community.

The circuit court said that among the Amish community in Vernon County “sexual assault of sisters is not something that is accepted. I understand it often happens and that it is dealt with in the community. And that’s not sufficient … I’m hoping that this sentence deters, as I said, the community.”

The court also said that “a prison sentence is the only way to send the message to Mr. Whitaker and to the community that this is totally unacceptable behavior … And I hope the elders in the community pay attention to this.”

First Amendment Challenge

Whitaker appealed his sentence.

He argued that the sentence violated his rights under the First Amendment’s free exercise clause because the court improperly based the sentence in part on his religious beliefs and his religious association with the Amish community. He argued that he was therefore entitled to resentencing under the Fourteenth Amendment.

The Wisconsin Court of Appeals held that the sentencing court’s consideration of facts related to Whitaker’s rights of association and free exercise of religion was constitutionally permissible. Whitaker appealed.

Circuit Court’s Attempts Related to Crimes

In her opinion for the majority, Justice Karofsky explained that because Whitaker’s appeal could be decided on narrower, non-constitutional grounds, the supreme court would assume without deciding that the consideration of Whitaker’s place in the Amish community was improper.

Whitaker argued that the circuit court’s reference to the Amish community in which he was raised lacked a sufficient nexus to the relevant sentencing factors established in Gallion. But Karofsky explained that Whitaker had failed to prove by clear and convincing evidence that the assumed improper factor was the sole cause of an increase in his sentence.

Justice Karofsky reasoned that when taken in context, the circuit court’s attempt to encourage the Vernon County Amish community to report sexual assault of children was wholly related to Whitaker’s criminal conduct.

“The circuit court was not addressing a failure to report a one-off crime after the fact; the community elders knew the assaults were ongoing,” Justice Karofsky wrote. “Their failure to meaningfully intervene directly enabled Whitaker to commit hundreds of additional assaults on his sisters and greatly compounded their harm.”

As such, Karofsky concluded, the circuit court’s attempts were related to general deterrence and the protection of the public, both valid sentencing factors under Gallion.

“The three victims were left completely defenseless,” Justice Karofsky wrote. “The circuit court recognized that the victims’ protection was dependent on help from the community and encouraged community members to hold offenders like Whitaker to account. In doing so, the circuit court sought to protect victims from further trauma and abuse.”

Additionally, Karofsky pointed out that there was no evidence in the transcript that the circuit court had added to Whitaker’s sentence solely because of his religious beliefs or his association with the Amish community.

Justice Roggensack’s Concurrence

In her concurrence, Justice Roggensack argued that the majority had mistakenly conflated Whitaker’s interest in associating with the Amish community and his interest in adhering to Amish religious principles.

“The difference between associational characteristics of Whitaker’s childhood community and Amish religious principles is important,” Roggensack wrote.

“The majority opinion’s lack of separation of two constitutionally protected interests could be interpreted in a way that disparages Amish religious principles.”

Justice Roggensack concluded that Whitaker’s association with the Amish community, given the role that community mores played in providing Whitaker with the opportunity to commit the sexual assaults, was a relevant sentencing factor.

But, she wrote, “there was nothing in the record of Whitaker’s sentencing that describes Amish religious principles so as to support a factual foundation for concluding that there is ‘congruity’ between Amish religious principles and Whitaker’s sexual assault of his sisters.”

Justice R.G. Bradley’s Concurrence

In her concurrence, Justice R.G. Bradley argued that the majority erred by holding that nothing in the transcript suggested that the circuit court had added to Whitaker’s sentence solely because of his religious beliefs.

“Phrasing a court’s sentencing discretion in such terms suggests a court may consider religious beliefs, the exercise of any other constitutional right, or some other improper factors as a basis for enhancing a sentence,” R.G. Bradley wrote. “Doing so would be improper.”

Justice Hagedorn’s Concurrence

In his 31-word concurrence, Justice Hagedorn wrote that “the analytical framework utilized in sentencing cases like this one deserves a closer look.”