A Powerful Court's Weird Logic for Softening the Sentence of a Man Who Raped His Own Daughter

In 2006, Kelly Vosgien pled guilty to three counts of rape, three counts of sodomy, one count of sexual abuse and three counts of compelling prostitution. The Oregon state court gave him a sentence of 55 years. These charges were brought against Vosgien after he traded cigarettes and money to his daughter and her friend in return for sex. Both girls were minors at the time.

The case had seemingly been put to rest until 2013, when Vosgien applied for habeas relief, claiming “actual innocence” with regard to his previous convictions, paying special attention to the charges of compelling prostitution. Vosgien missed the one-year filing deadline for habeas, but as is common and often imperative with retrials, the appeal was allowed to proceed.

The Oregon district court that handled this initial appeal used Bousley v. United States to throw out the innocence claim, citing precedent: “In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.”

The second part of the court’s argument, less lawyerly and therefore more straightforward, claimed that bribing one's daughter, or any child, in exchange for sex must constitute some sort of crime under Oregon state law.

In the end, the judge refused to alter any charges on the 2006 conviction, so Vosgien applied for a second appeal, which went to the 9th Circuit court. 

This move, amazingly, worked—sort of. The court’s decision, filed February 13, reversed the ruling of the district court in part by throwing out the three counts of compelling prostitution. The argument that got Vosgien off the hook was based on a 2010 case, State v. Vargas-Torres, which narrowed the legal definition of “compelling prostitution” in Oregon. The court determined such a charge now requires that goods be traded for sex through a third party. Since Kelly Vosgien procured the sexual favors only for himself, these three counts will be stricken from his sentence.

Vosgien’s counsel also argued that if the court found their client innocent of the prostituting charges, the rest of the charges should be challenged as well. The Ninth Circuit soundly rejected this claim.

I spoke with John Wilkinson, a former assistant commonwealth attorney in Virginia who is now an attorney advisor with AEquitas, the federally funded prosecutors’ resource on violence against women. Wilkinson said that overcharging defendants, especially in cases of violence against children, is common, and that from time to time some charges are bound to be dropped in the sentencing process.

“By analogy,” Wilkinson said, “cases we frequently charge every single charge we can is child pornography. There will be hundreds of counts because they charge for every image found in the defendant’s possession. You want to give them everything you’ve got when we’re dealing with violence against children, and it’s the same thing here now.”

The recent ruling won’t get Vosgien out of jail any more quickly since he is serving the compelling prostitution charges concurrently with his other, more serious convictions. But this is not the only issue at stake.

As was seen recently with the case of Michael Dunn, who did not end up being charged with the first-degree murder of Jordan Davis (again, likely because the state attorney overcharged), an individual can be sentenced to life in prison without justice being fully done. While the prosecutorial mistakes made in these cases are certainly not equivalent, they are, at least, analogous. A particular moral boundary was crossed when Vosgien not only forced himself on two minors, but also extorted them in the process. In this respect, Oregon state law has failed to deliver justice to the victims of Vosgien’s repugnant acts of sexual violence.

The additional outrage is that the two young women, their friends and their families must contend with Vosgien’s crimes once more. “Even if this doesn’t affect the case, how does it affect the children, who are now adults, that this is back in the headlines?” Wilkinson asked. “It just makes them relive the case again and again. Just that he got away with a piece of that case, I really do think there’s a symbolic element.”

The decision is being remanded to the previous court, but Wilkinson claims that, “based on this [most recent] opinion the charges will likely remain dropped.”

“It’s very offensive,” Wilkinson said. “You look at this case and think why would anyone want to lessen the conviction?”


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