Ex-pastor Loses Appeal on Sex Crime with Girl but Gets 2 Sd Supreme Court Votes
By Stephen Lee
A former Brookings pastor convicted in 2015 for sexual contact with a 14-year-old girl in the church lost his appeal in the South Dakota Supreme Court. But two of the five judges agreed with him that he didn’t break the law. Timothy Bariteau remains in prison serving an eight-year sentence. The decision, handed down last week, came down to careful parsing of the words of a state statute outlawing certain sexual contact. The state’s top judges disagreed on what’s legal and what’s not. The five justices considered the appeal using only briefs, without oral arguments, in May and filed their 3-2 decision on Aug. 3, upholding the state circuit court’s conviction of Bariteau. It’s a telling case because not only did the justices split over what the law means, but also the state’s top prosecutor on the case, Attorney General Marty Jackley, tells the Capital Journal the statute might need some clarification. Bariteau, 39, remains in state prison. In 2005, Bariteau came as worship pastor to Morningside Abundant Life Church in Brookings, a congregation of the Church of God, (Anderson, Indiana). He had obtained credentials as a pastor through an alternative route in the denomination that didn’t require the traditional seminar education, a church leader told the Capital Journal. He was known for his musical talent and posted his singing on YouTube. Bariteau, who had come from California, led worship services and music programs, and his duties included assisting with the youth group, the Supreme Court said. The girl who was his victim met him in church when she was in sixth grade. He and the girl began communicating through Facebook when she was in seventh grade, in 2013, and he was giving her needed guidance and “allowed her to confide in him,” the supremes said. Soon, the “the conversations became flirtatious” and they began texting. It led to meetings outside church, with hugs in the park, during which Bariteau “reached down and grabbed (her) butt.” He texted an apology later that day “for his inappropriate behavior.” Such touching was sporadic but continued into the girl’s eighth-grade year, often happening in the church. The last incident, on which his conviction hinges, was in April or May of 2014, in the music sound booth at church. Bariteau stood behind the girl — both were clothed — and “pressed his groin and erect penis against her buttocks,” and pulled her back when she tried to leave, then hugged her and kissed her neck before they separated. In July 2014 Bariteau sent her photos of himself holding his erect penis through his shorts. He later told investigators he woke up the next morning “freaking out,” quit messaging the girl, who got angry. Soon her boyfriend confronted the pastor about Bariteau’s conduct. Bariteau then “panicked,” and told his wife and the senior pastor at the church about what he had done. The senior, or lead pastor, the Rev. Joe Ganahl, contacted law enforcement about Bariteau’s admissions. Bariteau told investigators about the incident that spring in the church of pressing against her from the back. He was indicted under the statute debated by the Supreme Court, South Dakota Codified Law (SDCL) 22-22-7.1. It’s key phrase in his appeal is, “Sexual contact defined ... means any touching, not amounting to rape, whether or not through clothing or other covering, of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party.” The justices said in their ruling released last week in Pierre, “It is undisputed that Bariteau never touched (the girl’s) breasts, vagina or anus during this incident or any of the previous incidents.” Bariteau’s key argument in his appeal is that his lack of touching those parts of the girl means he didn’t break the law. The prosecutors, however, argued that the statute’s language about touching genitalia includes the defendant’s penis, too. Justice Janine Kern wrote the court’s opinion agreeing with the prosecution’s way of reading the statute; Chief Justice David Gilbertson and Justice Lori Wilbur joined in the majority opinion. “The state, in response, contends that sexual contact as defined ... occurs when the defendant touches a victim with his genitals,” Kern wrote. But in a dissent, Justice Steven Zinter — joined by Justice Glen Severson — agreed with Bariteau’s reading of the law. Zinter wrote of his three colleagues that “the majority has rewritten the statutory definition of sexual contact.” “These quoted words prohibit a defendant’s ‘touching of’ — not a defendant’s ‘touching with’ — the specified body parts.” “Additionally the specified body parts do not include a child’s buttocks,” Zinter wrote. “Therefore, Bariteau’s touching the child’s buttocks ‘with’ his genitals, although reprehensible, was not prohibited by the ordinary meaning of the words in SDCL 22-22-7 and SDCL 22-22-7.1. . . .,” Zinter wrote. “When read in context, (those statutes) only prohibit a ‘defendant’s touching of’ the breasts of a female, or the genitalia or anus of some ‘other’ person.” “If South Dakota statutes are to prohibit a defendant’s ‘touching with’ or ‘any touching involving’ a defendant’s genitals, the legislature must do what the other states have done: amend the statute to criminalize such conduct.” Zinter adds, “The legislature simply failed to anticipate Bariteau’s different kind of act. And rectifying that oversight is a legislative rather than a judicial function.” Zinter ends his dissent with call-out to another branch of state government: “Only the legislature may rewrite the statute. The legislature should amend SDCL 22-22-7.1 to prohibit Bariteau’s misconduct.” Justice Severson joined in Zinter’s dissent. In a statement through his office on Tuesday when asked by the Capital Journal for a comment on Zinter’s dissent, Jackley said some work might be needed on the statute. “Technically, new legislation is not needed, but we may decide to work on clarification of that statute,” Jackley said, adding it’s “unsure at this time.” Because of the nature of his crime, Bariteau is required to serve half the prison time, or four years, before he’s eligible for parole, said MIchael Winder, spokesman for the Department of Corrections. He was arrested in California in late 2014 and when sentenced a year ago, he received credit for 305 days already served behind bars. Bariteau was married with children when he was convicted. The Rev. Ganahl said the church tried, in “the very difficult time,” to minister both to the girl and her family and Bariteau and his family as well as the congregation. Upon his arrest, Bariteau was effectively suspended from the church. Once he was convicted, the denomination began to revoke his ministerial credentials, Ganahl told the Capital Journal a year ago. Contact: stephen.lee@capjournal.com
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