Despite an emotional appeal from the victim and her mother in court Monday, Kyle Dean Payne will serve no prison sentence for his conviction on three crimes related to an incident in which he partially stripped an unconscious fellow Buena Vista University student, photographed himself fondling her body, and later installed the images and video on his computer.
Judge Don E. Courtney admitted that he was "torn" in sentencing Payne, who had promoted himself as a women's rights and anti abuse activist, and volunteered as a rape crisis women's counselor while studying at BVU.
"I'm torn between sending this young man to prison or having him spend a substantial amount of time in the county jail," Courtney said, leaving the Buena Vista County Courtroom for several minutes during the proceedings to soulsearch over the decision.
When he returned, he gave Payne a five year prison term on an attempted burglary felony charge, and suspended the entire sentence in favor of probation. Payne was given 360 days in the county jail on each of two invasion of privacy convictions, but the terms were cut in half to 180 days and set to run concurrently, so he will receive 180 days total. No fine was announced, and Payne was given a week to get his affairs in order before reporting to the sheriff to be jailed.
The victim, her family and supporters from various feminist and women's rights movements had argued for Payne to be sentenced to the maximum possible penalty, and wanted him to be placed on the Sex Abusers Registry. They claimed he was using his position as a women's advocate to gain access to young women who are in a vulnerable state, which Payne has denied.
The victim addressed the judge during the sentencing.
"I didn't want to come here and speak today," she said, "I only wanted this to go away."
"It's the kind of thing that you hear can happen, but not to you." She broke down briefly, saying that being in court was making her feel like what had happened to her was "happening all over again."
She turned to Payne, who was sitting directly in front of her. "For you someday this all may blow over and be done... the wounds you caused me will never go away."
The girl said she was unconscious at the time, and only learned of the abuse though the images of it that authorities found on Payne's computer. She was helpless, she said, and has no idea if further abuses took place.
"I'm lost and I'm broken, and I plead with the court to give him the maximum sentence," she said.
If Payne was truly sorry for what he had done, he would not have downloaded the images of her onto his computer, the victim said. "I will never forgive you," she told Payne.
Payne spoke briefly later in the sentencing, saying that he was "very sorry" for what had happened, and that he was taking full responsibility for it. "I don't expect forgiveness from you," he told the victim and her family.
With intense interest in the case within the online feminist community, numerous police and sheriffs officers were present for security inside and outside the courtroom. A victim's advocate sat with the young woman throughout.
The incident occurred after an off duty resident advisor reportedly asked Payne to check on the condition of the young woman, as Payne also worked as an RA at BVU. Payne, who had repeatedly spoken and written as a women's advocate, said on his blog site that in her room he felt a sudden and confusing urge to partially undress the woman and touch her, and unsure how to react to the feelings, he acted on the urge.
Buena Vista County Attorney David Patton said that his initial reaction was that a person such as Payne belonged in prison, but that his heart later "softened" toward the defendant. A plea bargain agreement was made before a trail date arrived. When Patton read Payne's blog, his psychological evaluation and a statement he wrote to the judge, he said he switched opinions again. "Mr. Payne needs to be sent to prison," said Patton, claiming that he showed no real remorse.
As he did several times during the proceedings, Payne dropped his head into his hands at those words.
Patton said Payne's writings barely mention the woman, and instead refer to himself 100 times while reflecting on the incident, trying to make others feel sorry for him and showing narcissistic tendancies, the county attorney said, adding that a rare psychological test scoring indicates that his personality tends toward denial. He said that the images of the victims were not the only ones, and said that Payne had also videotaped himself masturbating while out of sight in a public building. The defense did not address that allegation.
Although Payne used his online blog to refer to alleged sexual abuses he had suffered as a child, as a trained rape crisis counselor, he should know that past abuse does not justify abusing ohers, Patton said.
In the blog, Payne said that he at one point after the crime felt like commiting suicide, Patton said. "It is not about the woman, it's all about him... perhaps prison will give him more time to reflect."
Payne's attorney F. Montgomery Brown argued for leniency, saying that the case required "creativity" in sentencing instead of a "cookie cutter" approach. He rejected Patton's arguments and said tha case could not be decided on "amateur psychology."
The attoney said that Payne has no prior criminal record, has maintained employment, and is an A student on track to earn a master's degree in September. Psychological evaluation has labeled him as a low risk to reoffend under any circumstances, and people from the university "have stuck their neck out" to offer input on his behalf. Payne was a nominee for Senior of the Year at BVU, and was the keynote speaker for a 2007 BV County Candelight Vigil against child abuse, held in the same courthouse where he was sentenced for the sexual abuse incident.
"He's made a spectacle of himself" by being such an advocate, resulting in much attention to the criminal case, Brown said.
"The worst thing you can be in America is a hypocrite... that's what this gentleman is," but he is not being judged on hypocrisy, the attorney stressed.
The attorney said he has defended other people accused of killing children and selling large amounts of cocaine - without those cases generating the kind of letter-writing and blog attacks that the Payne case has inspired.
Brown descibed his client Payne as effeminate, sexually repressed, with a high interest in pornography and a past of sexual abuse, and noted that he was emotional enough to cry while giving a speech on the impact of pornography during a Scholar's Day at BVU.
"This is a young man who is in crisis... What is prison going to do for him?"
Payne appeared to be crying into his hands at one point in the proceedings, but minutes later, turned and smiled brightly to members of his family.
While some would seemingly like to see Payne be abused in a prison situation, that would not serve justice and he should be considered particularly "vulnerable" to a prison situation, the attorney said.
In asking for a deferred judgement, Brown said, "Do we really need another felon out there with this degree of education?"
The judge said that he could not agree to a complete deferral of sentence, due to the extent of violation of trust that had occurred.
He explained to the crowd that he is aware that there will be some who agree with his sentence and some who disagree, no matter what decision he arrived at. He said he took Payne's age and lack of prior criminal record into account, and addressing Payne directly, said, "I could very easily have sentenced you to prison."
Turning to the victim, he added, "I have considered ma'am the harm he's done to you."
Payne will serve 180 days, then three years of probation as specified with the charges, then an additional 10 year term of probabation. He does have an option to appeal the sentence. He is also to be restricted to his county of residence, and is to receive any treatment specified by the Iowa Department of Corrections.
"I hope while you are sitting in Buena Vista County Jail, it gives you plenty of time to think about the harm you have caused... (and that you) proceed to straighten your life out," the judge told him.
The victim's family, originally from Newell, has since moved away from the area. The girl's mother said that Payne's actions had caused her daughter's world to come crashing down - changing her forever.
She said she believes Payne has done such things before, and that she feels he will do them again if given an opportunity.
The only thing that would have given the family comfort, the mother said, is to have seen him put in prison and listed on the Iowa Sexual Abuse Registry in hopes of preventing such an incident from "treading on the hearts of another family."