Fitting the crime

Flathead sex offender exposes legal shades of gray



Whatever your cause, Wilbur Eskill Rytky is probably not your ideal poster child. But his case may be just the one to clarify Montana sex crime law, and underline the need for updating it.

In February 2004, Rytky, now 32, moved to Whitefish, one month after his release from a Maine prison.

According to Flathead County Attorney Ed Corrigan, Rytky was convicted of unlawful sexual contact in 1994 and given three and a half years of jail time, with four years probation. In 1996, he was again charged with unlawful sexual contact, and later that year charged with gross sexual assault; these charges were dismissed as part of a plea agreement. In 1997, Rytky pleaded guilty to one count of unlawful sexual contact.

All these events occurred in Maine. In 2002 his probation was revoked because of another charge of unlawful sexual contact. Rytky was then incarcerated until 2004.

Three months after moving to Whitefish, Rytky allegedly molested a 16-year-old male co-worker whom he was supposed to be giving a ride home from the Whitefish fast food restaurant where both worked.

Corrigan charged Rytky with felony deviate sexual conduct, a crime placed on Montana’s books in 1973. Deviate sexual conduct is in part defined by Montana law as “sexual contact or sexual intercourse between two persons of the same sex.”

That law, as it applies to consenting adults engaged in private, same-gender, noncommercial sexual conduct, was declared an unconstitutional violation of an individual’s right to privacy by the Montana Supreme Court in 1997’s Gryczan v. State case. As a result, in 2003, state Rep. Tom Facey, D-Missoula, sponsored a bill that would have removed the crime of deviate sexual conduct from Montana’s legal code. Facey’s bill was defeated, and thus the seemingly obsolete law has remained part of Montana law.

But Corrigan believes the law may not be completely obsolete. He believes it can still be constitutionally applied to non-consensual sex.

Had Rytky’s alleged victim been female, he could have been charged only with sexual assault, which, in Montana, when the victim is 16 or older, is a misdemeanor carrying a maximum penalty of six months in prison. Felony deviate sexual conduct, on the other hand, carries a maximum penalty of 10 years.

Corrigan says he chose to charge Rytky with felony deviate sexual conduct precisely because of the crime’s felony designation.

Convicted of a misdemeanor charge, “[Rytky] would have been released in a matter of months,” Corrigan says, “without supervision, without requirement of sex offender treatment.”

But if convicted on the felony charge, Rytky would be eligible for a mandatory sex offender treatment program and probation.

To get a felony charge, Corrigan says, “The only avenue available to us was to charge him with deviate sexual conduct.”

On December 22, 2004, Rytky’s lawyer, Mark Sullivan, filed a motion to dismiss the felony charge, arguing that its application of different penalties for the same crime, depending on the sex of offender and victim, amounted to an unconstitutional violation of Rytky’s right to equal protection. But in a plea agreement arrived at prior to Flathead County District Court Judge Ted O. Lympus’ consideration of the motion, Rytky pleaded guilty on the condition that if he received a sentence of more than five years, he reserved the right to have his dismissal motion heard.

In May 2005, Judge Lympus sentenced Rytky to 10 years, without ruling on the original motion to dismiss. Rytky appealed the case to the Montana Supreme Court, which decided June 20 that Lympus had erred in not ruling on the motion, and remanded the case back to district court, where it will be re-tried.

Corrigan now says he will re-file the same charge against Rytky, and Rytky’s attorney says he will again file a motion to dismiss.

Rytky’s case puts Karl Olson, executive director of Montana PRIDE, a gay/lesbian advocacy group, in an awkward position. While Olson and PRIDE don’t condone non-consensual sex, he also believes that the in-limbo law encodes bigotry toward homosexuals and should therefore be struck down.

Whatever the district court’s decision in Rytky’s retrial, both Sullivan and Corrigan say they’ll appeal to the Montana Supreme Court. If the court chooses to rule, that decision would then set a precedent for whether the deviate sexual conduct law can be applied in cases of non-consensual sex.

Corrigan concedes it’s likely that Rytky’s constitutional challenge will prove successful, but notes that due to the county’s legal maneuverings thus far, Rytky has now been in jail 18 months longer than he would have been under the sexual assault law.

Ultimately, Corrigan hopes, a court decision for Rytky will highlight the need for reform in Montana’s sex offender laws.

“Hopefully this will bring to the legislature’s attention the need to strengthen Montana’s sex assault statute,” he says. “What I’d like to see is the legislature change the statute and make it a felony for persistent offenders.”

Lynn Parrish, a spokesperson for the Rape, Abuse and Incest National Network, the largest anti-sexual assault organization in the United States, is shocked by the “leniency” of Montana’s sex offender laws.

“I would think that [Rytky’s case] would be a great case for people to use to lobby the state legislature,” she says. “We don’t generally get involved in state issues,” Parrish continues, “but this is something we might look at.”

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