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For immediate release – Tuesday, November 14, 2006.
Contact Bob Brammer – 515-281-6699.

Statement of the Attorney General’s Office

Statement of the Attorney General’s Office:

We have concluded that we cannot successfully appeal and challenge the District Court’s ruling last month that Lawrence Vander Esch’s convictions should be vacated.

If we thought we had an opportunity for success on appeal we certainly would file an appeal. However, we have examined this matter closely and think we have no chance of succeeding on appeal, given the Iowa Supreme Court’s clear ruling on these issues in a later case, State v Bolsinger, and the U.S. Supreme Court’s decisions on the subject of the retroactive application of new case law to prior convictions. The District Court applied the Supreme Court’s ruling in the Bolsinger case to the Vander Esch matter, and we see no prospect of a different outcome upon appeal.

We regret this outcome.

Furthermore, the Attorney General’s Office will be proposing legislation in response to the Bolsinger decision and recent Vander Esch ruling. We will ask the Legislature to clarify that if a victim’s consent to a sex act is obtained by fraud, then the act would constitute sex abuse. To put it another way, we will ask the Legislature to determine that, if a person is told that the act to be committed is not sexual in nature when in fact it is a sexual act on the part of the perpetrator, then any consent is invalid, and the perpetrator can be prosecuted for sexual abuse.

Background: District Court Judge James D. Scott vacated Vander Esch’s convictions in a ruling on October 16, 2006, finding that, under the Bolsinger decision, Vander Esch’s conduct did not violate Iowa’s sexual abuse laws because there was essentially consent on the part of the victims even though they were misled. Vander Esch had already discharged his sentence and been released after serving almost five years of a ten-year sentence on four counts of third-degree sexual abuse. (This was a typical amount of time served for a ten-year sentence.) Judge Scott vacating the conviction means that Vander Esch will no longer have to register as a sex offender or follow sex offender residency restrictions.

END of statement.

On the Web: www.IowaAttorneyGeneral.org.