By Daniel Silliman
A federal judge threw out a legal guideline on child predators, sentencing a 40-year-old man, who traveled from Texas to Georgia to have sex with a child, to 20 years in prison.
The mandatory sentence, according to federal law, is 30 years to life.
Judge Beverly Martin said the required sentence was unconstitutional and "disproportionately harsh." During the Thursday afternoon sentencing, on the 23rd floor of the Richard B. Russell Federal Building, in Atlanta, Martin said the law ought to distinguish between people who intended to sexually hurt a child, and those who actually molested a child.
"There is no evidence you have ever touched a child," the judge told Kelly Farley, the man convicted of chatting online with an undercover Clayton County Police Department detective for seven months, talking about explicit, lewd things he wanted to do to a 10-year-old girl. He was arrested at Hartsfield-Jackson Atlanta International Airport, after he flew in from McKinney, Texas, where he was the vice president of a payroll and tax management company.
At the time of the arrest, according to Detective Joanne Southerland, he had files of child pornography on his laptop computer and printed directions to meet the fictitious mother and child, "Steph" and "Sydney."
The United States Attorney, Francey Hakes, argued that Farley is a child predator, and his actions threaten children and offend society.
"This is a man willing to take advantage, in fact eager to take advantage of children," Hakes said. "The Internet didn't make Mr. Farley an offender. It gave him a place where it appeared, and in some cases, where he was accepted."
Hakes described Farley's interest in children as "prurient," "evil," and "deviant."
An expert witness for the defense, however, testified the 40-year-old isn't a child predator and isn't "significantly" attracted to young girls.
Candice Osborn, the expert who did a psycho-sexual evaluation of Farley, said he showed "no sexual interest in children." The analysis was based on a test, Osborn testified, where Farley clicked through a series of slides showing half-clothed men, women, boys and girls. The time it takes the subject to click forward to the next picture is believed to relate to the sexual attraction to a picture, and Farley didn't linger on the images of little girls.
Osborn said the other factor considered in her analysis that Farley isn't a sexual predator, is his lack of a criminal history. Even if he had harmed children in the past, though, Osborn said, that wouldn't make him a predator.
According to Osborn, "sexual predator" is too loose and unscientific a term, and "individuals can sexually molest children for other reasons than significant sexual interest in children."
Farley, wearing a wrinkled orange jumpsuit, listened to the testimony leaning forward, his chin on his fists.
Osborn apologized to the judge, saying she knew her testimony was counterintuitive, but it was based on more than 25 years of clinical research.
Hakes said the expert's testimony "flies in the face of the definition" of a sexual predator.
In his own words, while chatting with the undercover officer and repeatedly reaffirming he wanted to have sex with the girl "for real," Farley explained his desires as an escalation from pornography. "Fantasy is fun, but want real," he wrote in an Instant Message. "It's kind of the progression of porn actually. Well as a teen started looking at porn as you look at more, you need harder and harder stuff to really get you going."
By the time Farley was talking to the undercover officer, he had, he claimed, seen child pornography "as young as they come" and thought about having sex with his own daughters.
Osborn said child pornography isn't related to child molestation, though. She said studies show only about 1.3 percent of people who view child pornography escalate to actually, inappropriately touching children.
"The defendant cultivated a relationship with a woman and child for the purpose of sexually victimizing that child," Hakes said. The prosecutor argued that Farley proved himself a child predator and a danger to society when he traveled 810 miles intending to molest a little girl.
Vionnette Johnson, representing Farley, argued for mitigating factors. She said he was a good father, who always attended his children's after-school programs and soccer practices. "As the court knows, Mr. Farley is a first-time offender. He has never been in trouble before ... He had never been a problem, not one day. This is why it was so painful for the family," Johnson said.
The judge said she empathized with that. "I consider this a tragedy for your family and for you," Martin told Farley, as he stood before her. "And of course it would have been my preference that none of this every happened, as I'm sure it would have been yours."
The judge said that even though she was rejecting the federally required sentence, as unconstitutional, she did consider the offense grave and her sentence heavy.
"I've never intended to imply that I don't consider this a serious offense," Martin said, and she sentenced the 40-year-old man to 235 months in federal prison, meaning he'll be eligible for supervised release when he's 60 and his own children are adults.
Both the U.S. Attorney's office and the defense are considering filing appeals.