Jailbait

Frank Rodriguez faces a lifetime on Texas’ sex offender registry for having sex with a 16-year-old—who is now his wife. He’s not alone.

By Paul Kix

published: May 26, 2005

These sex offenders, they're all perverts, right? Pedophiles. Rapists. Sick freaks, the whole lot of 'em. Lock the bastards up for life. And good riddance, by God. And in the cases where we can't lock 'em up, where these sickos are showing off their weenies to little girls or some similar perversion, where the offense is of a "lesser" nature and gets only probation, we in Texas put the freaks on a sex offender registry, complete with photos and their home addresses. So we know where the hell they are. So we know where our kids shouldn't be.

Now the feds, they say if a guy lives clean for 10 years after his probation, he doesn't have to register anymore. He's rehabilitated.

In Texas? In Texas we say the guy has to register for life.

And yet--here's the weird thing--fans of lifetime registration now hope to change the rules. State Representative Ray Allen of Grand Prairie's at the fore. Ten years ago, he pushed hard for lifetime registration to pass. Now he says it's an overreaching law. Too many first-time offenders posing no risk to the public are forced to register for life, he says. The Texas Association Against Sexual Assault feels the same way. So does Texas' Council for Sex Offender Treatment.

Why? Because some of our new registrants each year are... these kids. That's all they are. A high school kid who has consensual sex with his girlfriend, but the girl's parents get upset with him and press charges. A 22-year-old who hooks up with a girl at a party only to find out, days later, that she's 16, had hooked up with two guys earlier that night and her parents don't like the names she's now being called. A 19-year-old guy in a chat room who gets sexually suggestive e-mails from a girl who says she's 19, but when the two are naked at her place and her mom comes home, she tells him to hide in the closet because "I'm only 13."

All of these cases are true. There are more, many more, like them. Marsha McLane, Representative Allen's policy director, says she hears "all the time" from mothers and fathers whose sons had consensual sex but are now sex offenders. Representative Jim Jackson of Carrollton says in the last two years, "probably as many as 50" constituents called, telling him the same. But no one has a definitive count; the sex offender registry doesn't list its offenders by the nature of the act that led to the offense. Only the offense itself is registered. So all these guys, according to the state of Texas, are classified--and punished--the same as the rapists, the pedophiles and the sick freaks.

But wait--in court, surely, these guys can prove that sex with the girl was consensual, or that she lied about her age, or that she was the aggressor.

No? They can't?

Turns out, in Texas, if the girl is a minor--16 or younger--and the guy is an adult and more than 36 months older than the girl, and if he admits he had sex with her, there is no defense available to him (or her, since the law is gender-neutral). It doesn't matter that the act was consensual or that she said she was of drinking age or that he saved her sexually explicit e-mails. None of that stuff's admissible in court. He is an adult. She is a minor three years younger than him. He is guilty of sexual assault of a child.

So he pleads. Gets, on average, between five to 10 years of probation. Probation's a bitch, too. He sits there in therapy with guys who make him want to puke, applies endlessly for jobs because few take on sex offenders and applies endlessly for an apartment for the same reason. After all, he can't live with his parents if a brother or sister under 17 lives there. The probation officer won't allow it.

But the guy gets through it. Finishes probation. Yet the raw deal isn't over. He must register for life as a sex offender. So any hopes he had for a career, any dreams--"That bright future is sucked up...It's the modern-day scarlet letter," says the mother of the 22-year-old. "That isn't justice. That is a travesty."

This session, two bills came before the House, one from Representative Jackson, that would at least allow an affirmative defense in a jury trial that the girl lied about her age. But both bills are effectively dead. A third bill, by Representative Allen, would give some sex offenders the option to tell a judge, once probation's over, that he shouldn't have to register. This bill made it through the House but doesn't apply to the guys who are 36 months older than the girls they had sex with.

The scary thing in all this? Except for the people making the laws, no one knows about this 36-month rule, or the lifetime registration waiting for all who plead guilty. The schools don't know. The parents don't. The kids don't either.

"Who's liable?" asks one father from Denton County, who went through three lawyers and spent $25,000 only to be told his son had to plead guilty, that he must register for life. "I think it's a class action lawsuit...That's the next thing that will happen."

---

If he hadn't loaned his sister the car nine years ago, none of this would have occurred. "Everything would have been fine," Frank Rodriguez says, a wry smile on his face. "Everything would have been fine."

Instead, in early May, the state revoked Frank's drivers license. Sex offenders are to renew theirs every year, but because the renewal place is open only on Tuesdays in Caldwell, a small town an hour and a half east of Austin, and Frank's birthday fell on a Wednesday--well, in any case, Frank just felt like letting it slide this year. To see how the state would respond.

These days, it's the little things that get him. Like this license renewal. It's only $25 to do it, but when Frank didn't, sure enough he got a curt letter from the Department of Transportation saying his license was revoked, because he'd failed to comply with the sex offender registry's regulations set forth by the state of Texas.

The registry. That maddening registry. That's why he's telling his story.

Frank returns to his seat and rests his meaty forearms on the kitchen table. He's a brahma bull of a man, with shoulders as thick and round as anyone this side of the NFL. Sitting next to him is his wife, Nikki, the "victim" of Frank's "sexual assault" nine years ago and today the mother of his three children, all of them playing in the living room.

"We had gone to the fair that night," Nikki says. She's telling the story because she's better with the details than her husband, who listens and drinks his iced tea.

The county fair is a big deal in Caldwell, the county seat of Burleson County, whose population has yet to reach 17,000. Frank and Nikki stayed at the fair till midnight that Saturday in 1996. Then Nikki had to make curfew. She was 16 that fall; Frank was 19. He'd graduated from high school four months earlier. They had dated for two years.

The two, in Frank's mother's car, took Frank's older sister, Donna, home with them. Frank dropped Donna off first. But she wanted to see her relatives, who were in town for the weekend and staying with Frank and Donna's grandmother. The house wasn't far away, but she needed the car to get there.

"I'm just coming and going," Donna told Frank. He tossed her the keys.

An hour passed. Melissa Wielderhold, Nikki's mother, phoned, irate. Nikki's sister, Lauren, was still at the fairgrounds.

"What were y'all doing?" Melissa said. "What has taken so long?" She thought Nikki had known about her little sister still at the fair. Nikki didn't know about Lauren, didn't know she was to have taken Lauren home that night. Melissa thought Frank and Nikki had sex instead.

They were sexually active, had been for more than a year, when Melissa took Nikki and Frank to Planned Parenthood to put her daughter on the pill. But that night, Melissa thought she had two teenagers out of control.

Frank called Donna, still at her grandmother's.

"You don't understand. I need the car now," he said.

"I'll get there when I get there," Donna said. The dominoes game with her cousins had just started.

A little past 1 a.m., Melissa Wielderhold roared up Frank's parents' gravel driveway, dirt and rocks spewing into the lawn. She slammed the door and found Frank and Nikki waiting on the porch. Nikki got in the car without saying a word.

An hour later, with both her daughters home, Melissa wouldn't listen to Nikki's story. She wouldn't listen to Jim Wielderhold, Melissa's husband, as he pleaded with her to wait till morning to press charges against Frank.

No, Melissa said. They needed to learn a lesson. She called the sheriff's office; Frank was charged with sexual assault of a child.

"Knowing my mom," Nikki says today, "I think it was just a scare tactic...I don't think she knew what all would happen. She didn't know the law. I didn't know the law."

Melissa went to the courthouse Monday and asked to retract the charges. Too late, she was told. The case was in the state's hands now.

No one knew its severity until Frank's sentencing October 14, 1996. Frank thought he'd get a couple of years' probation, maybe some community service--a hassle, but no big deal. Instead, his court-appointed lawyer told him he could face 20 years in prison if he fought the thing. If he pleaded, the lawyer told him, he'd get seven years' probation and deferred adjudication.

"Give me the probation," Frank said.

But it wouldn't be easy probation. More than 36 months separated Frank and Nikki in age, so Frank, in the eyes of Texas, was as deviant as the worst pedophile. Therefore, no contact with Nikki until she turned 17. No living with anyone under the age of 17. Don't go near a park. Don't go near a school...

As the terms of probation were reeled off, Frank, sitting in a room with others who had just pleaded guilty to various charges, saw Mike Brandhuber, a guy he knew in high school. Mike's sexual assault plea had been heard that morning, too. Like Frank, Mike was 19. Like Frank, the "victim" of Mike's "sexual assault" was his girlfriend of three years, Jenifer Tamplin. Like Nikki, Jenifer was 16 but more than 36 months younger than her boyfriend.

"Man, this sucks," Frank told Mike afterward. Mike nodded his head.

In February 1996, Mike and Jenifer had split up. Mike made plans to move from Caldwell back to Seattle, where he'd spent part of his childhood. In April, days before he moved, Jenifer told Mike she was pregnant and about two months along and it was his. Mike didn't believe her: Must be a ploy to get him to stay, he thought. He left for Seattle.

At a rest stop in Utah, Mike checked in with his dad. "Get back to Texas," he said.

Jenifer was indeed pregnant, and while Mike was on the road, Jenifer's father, Jack Tamplin, had pressed charges against him. Mike raced back to Caldwell. His first stop was Jenifer's place. He said he was sorry for leaving and of course he'd raise the baby and if she wanted to get married, he'd do that, too. Mike asked Jack about the charges he faced. "There's nothing I can do," Jack said. "It's going through--unless you don't get indicted."

But he was. In May 1996, the second Burleson County grand jury to hear Mike's case indicted him.

By October, Mike had asked Jack if he would allow his daughter to marry him, despite Mike's mistakes. Jack said yes. On the 14th, one month before Jenifer gave birth to Joseph, Mike pleaded guilty to sexual assault of a child. Jack went to the hearing but, feeling ashamed of what he'd done, left the courtroom when Mike pleaded. Mike got five years' probation and deferred adjudication. One of his terms of probation was to have no contact with his victim.

Today, Mike Brandhuber is one of the 46,000 registered sex offenders in the state of Texas. He'll register for the rest of his life.

---

"Protect our women and children," says Arch McColl, a Dallas defense attorney. That's the mentality of Texas' sexual assault laws, specifically as they relate to cases like Mike Brandhuber's or cases McColl himself tries. It's an old mentality--older than the sexual revolution, older than the industrial age. As old as Texas itself. "This whole law," McColl said at a recent legislative hearing in Austin, "was from 1836."

McColl's 2003 article "Web Surfers Beware," published in the journal VOICE for the Defense, a Texas Criminal Defense Lawyers Association publication, is a concise yet thorough and quite readable history of sexual assault law in Texas. It explains why no defense is available for people like Frank or Mike to the felony charge of sexual assault of a child. (A defendant like Frank or Mike has the right to a trial. But without a defense for the charge, his attorney will tell him to plea.)

Sexual assault is separated into two offenses. One deals with adult victims. The other deals with victims who are minors. "The major difference between the two sections," McColl writes, "is that sexual assault of a child... does not contain the phrase, 'without the consent of the other person' which is included in [the adult offense statute]." (The emphasis is his.) "This means that Josh"--a fictional 24-year-old McColl created for the article--"is guilty of sexual assault, with or without Jill's consent"--Jill being the fictional minor whose mother brought charges against Josh once she caught Josh and Jill naked in Jill's bedroom. "For more than 100 years, Texas courts have not allowed a defendant to use the [minor's] consent as a defense to sexual assault of a child," McColl writes.

It doesn't matter, either, if Jill pursued Josh or if she suggested sex. Now, prior to 1994, Texas' penal code said Josh had a defense if Jill, before having sex with Josh, "engaged promiscuously in conduct..." But after September 1, 1994, "that statute was amended, eliminating the promiscuity defense," McColl writes.

And what if Jill lied about her age, said she was an adult? In some states that's a defense, but not in Texas, McColl writes.

Nor should it be, says Chris Lippincott. He's the spokesman for the Texas Association Against Sexual Assault. He says for every case where the act was consensual, where the girl lied about her age or was the aggressor, TAASA can find a case where a young man raped a girl. "I don't think we should be throwing blame at the victim's feet," he says.

He cites an August 2003 study by the Institute of Domestic Violence and Sexual Assault at the University of Texas at Austin. Of the 330,000 children and adults sexually assaulted each year in Texas, only 52,800, or 18 percent, report it to law enforcement agencies, the study says. "And only a smaller number are investigated. And a smaller number still go to trial. And a smaller number still earn convictions," Lippincott says.

There's a reason for this, says James Quinn, a professor at the University of North Texas who's written a literature review on sex offender crimes. "Sex cases are weak," he says. Sex cases are two people with conflicting stories who offer no outside evidence and no witnesses at the alleged crime scene. In a lot of cases, "it's real hard to prove evidence," he says.

Which is why the Dallas County District Attorney's Office proceeds cautiously with cases where the punishment is as severe as what Frank Rodriguez or Mike Brandhuber faced. Or so says Rachel Horton, a spokeswoman for the district attorney's office. "We do get these sorts of cases all the time. And we handle them on a case by case basis," Horton says.

Hardly, says Phil Taylor, a licensed sex offender treatment provider in Dallas. "We don't have an independent judiciary. We have politicians in black robes," he says. Adds Michele Esparza, an attorney from Bryan who represented Mike Brandhuber, "I have seen numerous cases where the parents allow the dating to go on and then there's a breakup, they have sex or there's a pregnancy...and the parents press charges," she says. "And the prosecutors accept these cases.

"The legislators have to address this problem. The application of the law is unfair."

And the registry, Esparza says, is "unconstitutional."

---

Diane Estell placed her lawn chair in the grass. Before her, playing soccer in a Plano park on that Labor Day weekend in 1993, was Brett, her 12-year-old. Behind her, playing on the jungle gym, was Ashley, Diane's 7-year-old. Diane later said she waved at Ashley; Ashley waved back; Diane returned her focus to Brett's game. Moments later, she turned back toward Ashley. But Ashley was gone.

Roughly 1,000 people looked for her; some searched well into the night. The next day, Ashley's body was found on a dirt road about six miles from the park. Days later, police arrested Michael Blair, a 23-year-old from Dallas with a history of pedophilia. According to newspaper reports from Blair's trial in Midland, it took jurors 27 minutes to find him guilty of capital murder--an hour and a half more to sentence him to death.

By 1997, state Senator Florence Shapiro (R-Plano) had pushed through perhaps the toughest sex offender registration laws in the nation. With each subsequent legislative session, Shapiro's "Ashley's Laws" became more stringent. Among their requirements: mandating sex offenders include their names, photos and home addresses in a registry that's posted online; lifetime registration for nearly all convicted or adjudicated adult sex offenders; requiring sex offenders to publish their whereabouts in a newspaper at their expense; requiring sex offenders, upon moving to a new city, to notify the neighbors through postcards with the postage at a sex offender's expense.

Pending in the state Senate is House Bill 867, which would require DNA samples from all sex offenders. It would also require high-risk offenders to mail postcards of their status to nearby businesses. Yet just as DNA evidence now casts doubt on the guilt of Michael Blair, HB 867 is a bill, more than anything, in response to critics--from conservatives to liberals, from those defending the accused to those protecting the victims--who say the registry is bloated with first-time offenders who pose no risk to the public, who say law enforcement agencies are stretched thin tracking them. So in addition to the rigors mentioned above, HB 867 would also apply a more dynamic set of testing to separate the pedophiles from the Frank Rodriguezes of Texas. Currently, "a sex offender is a sex offender is a sex offender," says Tim Bray, a criminologist at the University of Texas at Dallas. They aren't separated in the registry by the nature of their offenses. Only the offense itself is registered, making it impossible to know how many offenders were, in fact, participants in consensual sex.

"Five to 10 percent [of sex offenders] are predatory in nature," says Allison Taylor, the executive director of the Council on Sex Offender Treatment, which would oversee dynamic testing should 867 pass. "So why are you running around after the kid who had willing sex with his girlfriend?"

Taylor's giddy about 867. "This bill would allow the state to begin to research deregistration and the mechanisms to do it," she writes via e-mail.

Deregistration isn't an option yet for guys like Rodriguez--and may never be, not while Texas is tied to the Jacob Wetterling Act, a federal law that gives out grant money to states in exchange for stringent sex offender regulations. In 2004, Texas received $32 million in Wetterling money. If the state loosened its sex offender requirements, it could lose $3.2 million a year.

The irony here is that Texas exceeds the requirements of the Wetterling Act. The act says 10 years after he has finished probation, a sex offender doesn't have to register if he meets two conditions: 1) he took a deferred adjudication plea for the charge of his sexual offense; and 2) he's stayed out of trouble since then.

One could therefore make the argument that if Texas loosens its guidelines for guys like Rodriguez, it could still receive federal money. But the 2004 Select Interim Committee on Sex Offender Statutes doesn't think so. Or, at least, it doesn't want to take the chance applying the argument. The committee writes, "A general exemption from registration would likely cost the state $3.2 million."

Which is too bad for Frank Rodriguez. His oldest daughter's 5 now. Soon, she'll want to have sleepovers; Frank worries about the sleepovers. What if she invites girls whose parents don't know him? What if these parents check the registry? What if they come across Frank's name? What if the parents tell their daughters they can no longer play with Frank's daughter? What if Frank's daughter is ostracized? What if kids call her names on the playground for something her daddy did before she was born?

What if Frank's not the only one marked for life?

---

Someone had to destroy the crime scene photos of Ashley Estell's death. They were too volatile simply to throw away. Someone had to shred them. The job fell to Rosemary, who in that late summer of 1993 worked as a bookkeeper at a Richardson lab that processed crime scene photographs. Yes, Rosemary would do it.

What she saw--to this day she doesn't care to put into words, "out of respect for [Ashley]. For her and her family," she says.

The photos she destroyed weren't the worst of them; she will tell you that. The worst of them were exhibits in the trial of Michael Blair. But as Rosemary put picture after picture through the shredder, she thought about her granddaughters who lived in Dallas--not the leafy suburb of Plano where Estell was nonetheless kidnapped and strangled to death. Would her granddaughters be safe? Safe from lifelong pedophiles like Michael Blair? Would they be raped, as Rosemary was at 19, by a man who held a knife to her throat? What would protect her granddaughters from that fate?

Senator Shapiro's "Ashley's Laws" would, Rosemary thought. She wholeheartedly agreed with the bill's passing in 1995. Yet 10 years later, the Ashley Laws "are the very legislation that has my son sitting in prison for 25 years."

Let's call him "William." If his real name were used and other inmates read this story, read about the actual reason he's serving 30, "I'd be a dead man," he says on the other side of the visiting booth in this Central Texas prison. "There's some real monsters in here." (It's for this reason that Rosemary asked the Dallas Observer not to disclose her last name.)

He was 17 in the summer of 1995, about to enter his senior year at Dallas Can! Academy. At his father's trailer home in Seagoville on August 10, William decided to throw a party. Dad, after all, was out for the evening.

A girl he knew and a girl he didn't came over. The one William knew lived a few trailers away. Her friend flirted with William throughout the night. She said she was 17; William liked her, and why the hell not? He and Farrah, William's girlfriend, were, as he says, "off" at that time.

Everybody at the party got drunk. Some got high. People left. The par