A judge in Kansas said the victims were "more an aggressor than a participant" in a sex abuse case with a 67-year-old man who was convicted of exchanging messages with a 13-year-old girl about him paying for nude photos of her and her friends.
Leavenworth County District Judge Michael Gibbens made the comments at a Dec. 4 hearing when he granted Raymond Soden's request to reduce his sentence, according to a transcript of the proceedings obtained by BuzzFeed News.
Gibbens sentenced Soden to five years and 10 months in prison — more than eight years less than what was recommended under Kansas sentencing guidelines.
"I do find that the victims in this case in particular were more an aggressor than a participant in the criminal conduct," Gibbens said as he listed his considerations for granting the request. "They were certainly selling things monetarily that it's against the law for even an adult to sell."
When Deputy County Attorney Joan Lowdon asked Gibbens to clarify his statements about the victim, first reported by the Kansas City Star, the judge said he thought "a 13-year-old who offers what she offered for money is certainly an aggressor, particularly since she's the one that had to travel to Mr. Soden," according to the transcript.
Soden, 67, pleaded no contest to one count of electronic solicitation, a felony, on Aug. 21, 2018. Prosecutors had argued for a sentence of 13 years and 10 months, according to Leavenworth County Attorney Todd Thompson. He told BuzzFeed News on Tuesday that his office is considering appealing the sentence.
Prosecutors said between Jan. 10, 2018, and March 19, 2018, Soden exchanged numerous Facebook messages with the girl, talking about paying her for nude photos as well as sex acts with her and her friends.
Soden told officers he knew the girl was 13 and that what he was doing was wrong, according to prosecutors.
"We take these crimes very seriously," Thompson said. "Our children [are] a particularly vulnerable population and we do whatever is in our power to make sure that they’re protected."
Gibbens could not immediately be reached for comment.
Teresa Huizar, executive director of National Children's Alliance, the accrediting body for more than 800 children's advocacy centers across the country, said the judge's comments were "incredibly inappropriate" and showed "a high level of ignorance of child development and perpetrator grooming tactics."
"They are still children and whatever they may look like physically their cognitive development is just not one where they can fully appreciate the consequences of their behavior," Huizar told BuzzFeed News. "What's evident to me is how clearly effective he was not only in a grooming the girls and their mother but in grooming a judge."
This was not the first time Gibbens, who, according to prosecutors, only recently moved from the civil to criminal docket, has given a convicted criminal a reduced sentence.
According to the Leavenworth Times, Gibbens sentenced a 19-year-old man who pushed a police officer down the stairs to 18 months of probation in July 2018, even though prison time was recommended under the state's sentencing guidelines.
Gibbens said he found the defendant’s age a compelling reason to grant probation as well as the fact that the defendant had no prior felony conviction, the Times reported.
In November, the judge sentenced another man to 36 months of probation for trafficking drugs into the Lansing Correctional Facility, according to the local newspaper. Prosecutors in that case requested the defendant be sentenced to 24 months in prison.
According to Kansas law, a judge must find "substantial and compelling reasons" to depart from sentencing guidelines.
Thompson declined to say whether he felt Gibbens met that criteria in this case.
According to prosecutors, Soden had two previous convictions, including for misdemeanor sexual battery.
In addition to his comments about the victim, Gibbens also cited Soden's age, his "physical and mental impairments," and what he perceived to be a lesser "degree of harm or loss attributed to the current crime of conviction" as reasons for departing from the sentence called for under state guidelines.
Gibbens said he based his conclusion about the harm done off of Soden's attorney's statements and the fact that the victims did not testify in court, according to the transcript.
Defense attorney Clinton Lee said Soden's contact with the victims originated with their mother, who he said "would regularly come over to my client's apartment and do favors," including cleaning his apartment and performing sex acts, in exchange for compensation.
"It's my belief that the girls knew of this relationship," Lee said, adding that one of them acknowledged the relationship in interviews with the Child Advocacy Center. "They even called Mr. Soden their mother's sugar daddy."
"It's our understanding that the girls ... reached out to Mr. Soden in what I can only assume would be some sort of learned behavior or modeling that they witnessed from their mother," Lee added.