I thought, this MUST be some kind of internet prank. Not at all. Jack Allen Schaap is really appealing his 12 year sentence for his sexual abuse of a minor. (We have articles on the plea agreement here and here.)*
Schaap is challenging his sentence on the grounds that the victim was an alcohol and marijuana user and abuser and that she aggressively pursued him sexually.
First of all, from a legal standpoint, it is highly unlikely that the courts will even give this kind of appeal a second thought. When a defendant accepts a plea agreement, they waive their rights to bring facts to a jury trial and that would include “newly discovered evidence”. The only exception to such rules are if the new evidence could not have been known even with a modicum of due diligence at the time Schaap was gathering evidence for his defense. The “new evidence” raised by Schaap is not evidence that was not known to Schaap during the initial proceedings, and could have been raised. As such, these kind of arguments are not grounds for an appeal.
Secondly, since Schaap did in fact accept a plea agreement, typically one must resolve the issue of the plea before any additional arguments can be heard regarding the facts of the case as these are waived by the plea. Schaap would have to prove that he was either coerced into making the plea, was not competent when he entered the plea, or did not enter the plea knowingly and/or intentionally. The burden of proof will be on Schaap to prove that his plea falls under any of these criteria, and the plea must be set aside first before the court can even begin to entertain the “new facts” Schaap has raised. In our opinion, it would be highly unlikely that Schaap’s plea is set aside. Thus, regardless of whatever “new evidence” Schaap claims, true or not, it is doubtful that he would be able to get his plea set aside in order to even raise these issues.
Even if Schaap’s plea does somehow get set aside, that would not cause a sentence reduction, it would merely entitle him to a trial, and he would be back at square one in preparing for a defense in a jury trial which would likely land him even more years if he goes to trial and loses. If Schaap somehow thinks he is going to get his plea overturned and then negotiate a better plea agreement later with the government, I think he is in for a rude awakening.
Thirdly, Schaap’s defense of “she pursued me aggressively” is normally covered by Rape Shield laws. In other words, a victim’s sexually history can not be used against her. Just because a woman is promiscuous, even if she was a prostitute, that does not mean that she is lying when she alleges that she has been raped or molested. There are some exceptions to the Rape Shield laws (such as if the victim had several prior cases of falsely accusing someone of sexual misconduct) but even if the girl in Schaap’s case was promiscuous and aggressively pursued him, it is doubtful that the court would allow that kind of defense to be raised. The same goes for the marijuana and alcohol usage. The federal rules of evidence prohibit evidence of prior bad acts and any exceptions to those rules do not apply in Schaap’s case.
From a Biblical view-point, did Potiphar’s wife not pursue Joseph aggressively?
Genesis 39:7 “And it came to pass after these things, that his master’s wife cast her eyes upon Joseph; and she said, Lie with me. She pursued Joseph, “DAY BY DAY”, and Joseph still refuse to lie with her:
8 But he refused, and said unto his master’s wife, Behold, my master wotteth not what is with me in the house, and he hath committed all that he hath to my hand;
9 There is none greater in this house than I; neither hath he kept back any thing from me but thee, because thou art his wife: how then can I do this great wickedness, and sin against God?
10 And it came to pass, as she spake to Joseph day by day, that he hearkened not unto her, to lie by her, or to be with her.
11 And it came to pass about this time, that Joseph went into the house to do his business; and there was none of the men of the house there within.
12 And she caught him by his garment, saying, Lie with me: and he left his garment in her hand, and fled, and got him out.
13 And it came to pass, when she saw that he had left his garment in her hand, and was fled forth,
14 That she called unto the men of her house, and spake unto them, saying, See, he hath brought in an Hebrew unto us to mock us; he came in unto me to lie with me, and I cried with a loud voice:
15 And it came to pass, when he heard that I lifted up my voice and cried, that he left his garment with me, and fled, and got him out.
16 And she laid up his garment by her, until his lord came home.
17 And she spake unto him according to these words, saying, The Hebrew servant, which thou hast brought unto us, came in unto me to mock me:
18 And it came to pass, as I lifted up my voice and cried, that he left his garment with me, and fled out.
Does not Proverbs devote entire chapters of advice on dealing with sexually aggressive women?? “For by means of a whorish woman a man is brought to a piece of bread: and the adulteress will hunt for the precious life.” Prov 6:26. EVEN IF THIS WAS TRUE OF HER, it is NOT an excuse for a professing Bible believing pastor, particularly one in a fundamentalist church that is notorious for preaching against such actions to such an extent that such Baptist standards are called “legalism” by Non IFB type churches, and often things Schaap HIMSELF PREACHED AGAINST.
What Jack Schaap has done, and what he is now doing are an embarrassment to the body of Christ and a black eye to the fundamentalist churches across the world. One has to wonder with such a frivolous appeal-is Schaap deliberately attempting to keep himself in the spot light as revenge against church members that no longer support him? Byin order to continuously reminding everyone that the pastor of a fundamentalist Baptist church took advantage of a teenager, he can surely guarantee that all the hostility toward IFB churches will come home to roost again, and perhaps that is part of Schaap’s plan. What else could he possibly be thinking in addition to the obvious fact that he simply doesn’t want to ‘man up’ ? Schaap got off pretty easy, and now he wants to challenge that?
PS We do note that Eddie Lapina and staff at First Baptist Church are in support of the court’s initial action against Schaap in this matter. So to our lovely IFB critics, don’t even bother commenting with any additional non sense about FBC.
*Our search shows that Schaap filed a Motion to Vacate Sentence on March 19, 2014, US District Court, Norther Dist of Indiana, 2:2014cv00087. The cause of action is listed as 28:2255 (or 28 U.S.C. sec 2255) which is the federal version of the petition for writ of habeas corpus. Hence this is not really an “appeal”. Since this motion must be filed within a year of sentencing, this was likely Schaap’s last ditch effort and the best he could come up with.
By Dr. James Ach and Dr. Elisha Weismann
UPDATE: Court Rejects Schaaps Appeal August 26, 2014