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Editorial: Implications of argument used by defense at Kenneth Fischer sentencing hearing offensive

The defense attorney in a criminal proceeding is an officer of the court. But said attorney’s main responsibility is to zealously represent the interests of the accused. Defense attorneys are expected provide a vigorous defense, advocating for their client, representing their client’s best interests and, according to the American Bar Association, ensuring that their client’s constitutional and other legal rights are protected while always acting within the bounds of the law and abiding by ethical codes and standards.

That means having to make some unsavory arguments from time to time and we are generally loathe to criticize defense attorneys for doing their job to the best of their abilities. However, on Monday in the U.S. District Court of Maryland, during the sentencing hearing for former Carroll County Public Schools teacher and principal Kenneth Brian Fischer, who had pleaded guilty on Dec. 18 to one count of producing child pornography, one of the arguments used in asking for a more lenient sentence by Fischer’s attorney, Michael Montemarano, played upon age-old prejudices that have no business being advanced in a court of law or anywhere else.

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Montemarano said Fischer struggled to accept his sexual orientation as a closeted gay man. “For 40 years, Ken Fischer tried to be someone he was not and it tore him apart,” Montemarano argued in front of Judge Richard D. Bennett. Montemarano also assessed some of the blame to both Carroll County, where Fischer grew up, and the school system for which Fischer worked for 17 years, saying Fischer lived in a community that would not have been accepting of him and that Fischer feared coming out as gay would end his career. The implication that homosexuals would be any more unable to control themselves around minors of the same sex than heterosexuals would around minors of the opposite sex is offensive. It hearkens to a time not so long ago when being gay was considered ample reason to bar a person from holding a job supervising kids.

The judge wasn’t having it. In sentencing Fischer to 22 years in federal prison followed by a lifetime of supervision, Bennett made it clear that one’s sexual identity and having sexual relations with minors are separate matters. Fischer could have continued to hide his homosexuality while having sex with adults, Bennett noted. “This is just not a case of a grown man coming to grips with his sexuality,” Bennett said. “You preyed upon young people.”

Exactly. The American Psychological Association, the National Association of Social Workers, the American Academy of Child Psychiatrists and the Child Welfare League of America all have policy statements declaring no correlation between homosexuality and child abuse. Most child sexual abusers are, in fact, straight. But it’s hard to imagine a defense attorney standing up in court and asking leniency in sentencing for a client’s sexual activity with underage girls because their heterosexual male client was confused about his sexual identity. According to the National Child Traumatic Stress Network, children of all ages, races, ethnicities and economic backgrounds may experience sexual abuse, and child sexual abuse affects both girls and boys in all kinds of neighborhoods and communities. Straight, gay, it makes no difference. Sexual abuse of children is about an adult taking advantage of them, often by the using his status of power over the minor.

“You damaged their lives irreparably,” Bennett said, speaking directly to Fischer, admitted to engaging in sexual acts with seven underage boys. “You did not give them time to grow. You, of all people, a teacher … .”

We’re glad Bennett said what he said during the hearing and imposed a significant sentence. We hope Fischer was sincere in pledging to be a better person when he gets out of prison. And we believe it is essential attorneys such as Montemarano provide zealous representation for their clients, through sentencing and beyond. We just take exception to one of the arguments made Monday.

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