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Couple with Intellectual Disabilities 'In Love,' But He's In Prison for Rape

Family photo via Jerry Aquino

Virginia’s parole board won’t say how many people have filed petitions for a pardon, but it appears the state is overwhelmed, with some individuals waiting years for an answer.  The situation has sparked complaints from families and lawyers statewide. 

James Desper was 26 when he connected with an 18-year-old woman from Roanoke.  His lawyer, Jerry Aquino, says the two texted for a time -- then agreed to meet.

“She was having some problems at her home.  He went to get her out of her environment at the house,” Aquino recalls.

When they got to his home in Augusta County, his mother refused to let the girl move in, so the two got a hotel room in Waynesboro.

“They had sex at the hotel.  Both bascially indicated that it was a consensual relationship.”

But she was intellectually disabled, and when her parents realized she was missing, they called police who tracked the couple down. The two said they were in love and wanted to get married, but the law says a young woman with such a low IQ really can’t give consent – so Desper was charged with rape – sentenced to 16 years in prison.  The problem, Aquino says, is that Desper himself is mentally disabled.

“He applied for social security benefits in 2001, and there was a finding that he fell within the borderline to mildly retarded range of intellectual functioning that we submit deprived him of fully appreciating the victim’s mental incapacity. Consensual sex occurred between people that both had cognitive disability.  After the trial, Steve Rosenfield of Charlottesville -- an attorney there -- did an extensive background investigation and determined that he had a significant mental health impairment that was not fully presented to the court.”

So Aquino asked the governor to intervene.

“I filed a petition with the governor’s office on or about April 29th, 2015 asking that the governor commute Mr. Desper’s sentence to time served in light of the mental health issues that permeate the whole case.”

He was informed the state had received his request, but over a four-year period he’s heard nothing more.

“I must have sent six or seven letters.  I’ve called several times, and it just doesn’t move.  Nothing happens. When you see a situation where injustice occurred, you expect them to step in and do something.”

Aquino suspects the parole board’s investigators are overwhelmed.  The governor gets 15-20 pardon requests per week, and there are just seven retired state police officers assigned to investigate them.

“They’re part time employees working hard on a large volume of cases, and they just don’t have the manpower to effectively process them.  If they took this stuff seriously, they would commit to hiring full-time staff to investigate these cases, to weed out the legitimate ones from the ones that just aren’t, and to move on them.”

We recently asked Governor Northam about the apparent backlog in pardon requests and wondered how many cases were pending.

“It’s certainly a priority of ours.  I don’t have the exact numbers though.  We certainly are looking at that.”

But under Virginia’s Freedom of Information Law the state is not obliged to say how many pardons are pending or when someone like James Desper could expect an answer, nor can the state say how many of those requesting pardons are African-American. 

That’s important in light of Governor Northam’s pledge to address issues of special concern to the state’s black citizens. They make up less than 20 percent of the state’s population, but 57% of prison inmates are black, and of seven people requesting pardons through the Innocence Project at the University of Virginia, five are African-American. 

Sandy Hausman is Radio IQ's Charlottesville Bureau Chief