ELKHART — As Zach Anderson sits in the Berrien County Jail in St. Joseph, Mich., his parents worry.
The young man from Elkhart, 19, pleaded guilty in Berrien County, Mich., Trial Court in March to a misdemeanor count of criminal sexual conduct for having sex — consensual sex — on Dec. 19, 2014, with a Niles, Mich., teen. She said she was 17, and met him in person after a whirlwind courtship in cyberspace that started with a meeting via the social app Hot or Not.
It turns out she was only 14, though, two years under the age of consent in Michigan. And now, Anderson finds himself sitting out a 90-day jail sentence, with another five years probation and, of particular concern to his parents, 25 years on Michigan’s sex offender registry. Worse yet, Les and Amanda Anderson, who run a small Elkhart media and printing company, fear their son could face a lifetime on Indiana’s sex offender registry on returning to the Elkhart area after his jail sentence is up.
“Here’s the thing: This mistake should not haunt him the rest of his life,” Les Anderson says from the family home in east Elkhart. That’s where his son — a 2014 Concord High School grad and Ivy Tech Community College student until his jailing — lived before Judge Dennis Wiley handed down the sentence on April 27.
In light of Zach Anderson’s age and clean criminal record, Wiley could have offered him leniency under Michigan’s Holmes Youthful Training Act, as his lawyer sought in sentencing. The Niles girl and her mom — whom the Elkhart Truth won’t name because the teen is a victim — even asked for leniency, asked that the case be dropped altogether.
“What do I say? I feel that nothing should happen to Zach,” the girl said at the first of his two sentencing hearings April 13, accompanied by her mother. “I, I mean I, I don’t know. I just ... if you feel like something should, I feel like the lowest thing possible.”
Her mom followed her daughter at the hearing.
“I don’t want him to be a sex offender because he really is not and I know that there’s an age difference and I realize that (name deleted) was inappropriate that night, we didn’t know,” the mother said. She continued: “I’m very sorry and I hope you’ll really consider the fact of just dropping the case. I can’t say anything more than that. I hope you really will for all of our families.”
Legal wiggle room?
Scott Grabel, Zach Anderson’s attorney, is investigating the legal strategies available to address what he, his client and his client’s family say is an unfair sentence.
Meanwhile, Zach Anderson’s dad, Les Anderson, has hinted at what he thinks are indiscrepancies in the proceedings that may create legal openings to revisit the punishment.
Expungeable: During sentencing in Berrien County, Mich., Trial Court, Judge Dennis Wiley said he thought the charge Zach Anderson was convicted of, fourth degree criminal sexual conduct, a misdemeanor, was expungeable, that it can be wiped from his record under certain circumstances.
“It’s not (criminal sexual conduct) first, second or third, so I believe it is expungeable at the end of five years under the statute. So, we shall see how he does,” Wiley said.
In fact, in Zach Anderson’s case, it isn’t, Grabel said. Would Wiley have meted out a different sentence had he been clear on the point?
Pre-sentence report: The original pre-sentence investigation, used in determining a culprit’s punishment, contained unsourced references to what the probation officer writing the report said were earlier, potentially predatory actions by Zach Anderson.
In fact, the actions referenced were attributable to someone else, not Zach Anderson, and the passages in question were ultimately stricken from the report.
Even so, Les Anderson says, the proposed sentence, ultimately adopted by Wiley, wasn’t rewritten to reflect the removal of the inaccurate sections in question.
Individualized sentencing: In sentencing, prosecuting attorney Jerry Vigansky argued against leniency for Zach Anderson, citing two similar cases in Berrien County. Zach Anderson unsuccessfully sought status under the Holmes Youthful Training Act, which allows younger offenders who get it to potentially expunge crimes from their record.
Michigan law, Grabel countered in a phone interview, calls for “individual sentencing,” based on the circumstances of the one defendant standing before a judge.
Though not germane in Michigan, Grabel said Indiana law allows defendants in certain cases to use the fact of victims lying about their age as a legal defense. As such, Zach Anderson theoretically could have been freed had his encounter occurred here with the 14-year-old girl who claimed to be 17, says his dad.
Wiley didn’t drop the case and ultimately denied Zach Anderson HYTA status, told him he’s “darn lucky” he got the deal he did. HYTA, geared to first-time offenders ages 17 to 21, allows eligible participants to expunge criminal convictions on complying with sentencing conditions, thus avoiding the stigma of a criminal record as they enter their adult years.
The criminal sexual conduct conviction and having to put his name on the list of sex offenders could have dramatic and far-reaching implications for Anderson, his dad says. Lost job and educational opportunities. Social stigmatization. Discrimination. Accordingly, the Andersons will fight the sentencing in court. They plan to argue for HYTA status based on what they and their backers believe to be discrepancies in the sentencing process.
“That is our goal: to get him off the list and be able to function as a normal person in society, be able to live his life like any other person. Because at the end of the day, this is the old-fashioned scarlet letter,” Les Anderson says. He went on: “My son, he’s not a danger to anybody. He’s not dangerous to society. … He’s not going to hurt a little girl. That’s not going to happen.”
Even under HYTA guidelines, Zach Anderson would face punishment and repercussions. “It’s not a cake walk. There’s still classes and counseling and restrictions that go along with that. ... That is just much more reasonable than the extreme that he got,” says Amanda Anderson.
Says Scott Grabel, Zach Anderson’s Lansing, Mich., attorney: “We’re not saying excuse it, no crime. We’re saying he’s more of a deserving candidate for HYTA.”
HOT OR NOT, FACEBOOK, SKYPE
It all started on Facebook, via the Hot or Not app accessible over the social media website.
Users post pictures and bios of themselves on Hot or Not, then, filtering by age, check out others, clicking a heart icon for “hot,” or attractive, or an X for “not.” The app, similar to Tinder, automatically displays pictures and bios, one by one, of other users nearby, and if two people deem each other hot, they can connect via the app.
“When you’re connected, you get to chat with each other, build upon your superficial connection, and maybe find something in common besides just looks,” a snarky Syracuse University blog from 2014 said in describing the app.
Per Hot or Not rules, those ages 13 to 17 are kept separate from users 18 and older. However, in creating a Hot or Not account, the 14-year-old Niles girl identified herself as 18 or over, John Gardiner, Zach Anderson’s first attorney, said in sentencing.
After connecting on Hot or Not, the two texted back and forth and, along the way, the girl told Zach Anderson she was 17. He asked her for pictures “of intimate body parts,” Jerry Vigansky, an assistant Berrien County prosecutor, said at sentencing.
Two days after the initial contact, on Dec. 19, they met, according to the girl’s account to the Berrien County Sheriff’s Department responding officer, or R/O, who interviewed her. Authorities got involved, ultimately resulting in the criminal charges, after the girl’s mother called for help the evening of Dec. 19, wondering where her daughter was as she met with Zach Anderson. She worried the girl would miss a dose of medicine.
“The victim (name deleted) advised R/O that she met Anderson two days ago on FaceBook through Hot or Not,” says the sheriff’s department complaint. “(Name deleted) advised R/O that they talked for a couple days and decided to meet up. (Name deleted) advised R/O that Anderson picked her up in his vehicle around the corner from her residence.”
Zach Anderson, whose parents’ Elkhart home is about a 40-minute drive from Niles, stopped at a convenience store for condoms after picking up the teen. Then they had sex at a Niles playground.
“(Name deleted) advised that Anderson told her that he was 19 years old,” the sheriff’s department complaint continues. “(Name deleted) advised R/O that she didn’t tell Anderson how old she was. (Name deleted) advised R/O that Anderson didn’t force her or threaten her to have sexual intercourse with him.”
Weeks later, they were communicating via Skype, Zach Anderson told Berrien County Sheriff’s Department authorities. Berrien County officials visited him for questioning in late January at his place of work in Goshen.
In that exchange, she “stated to him that he was in trouble,” according to the sheriff’s department report recounting the Goshen interview. “He advised that he had very little contact with her after that through any kind of texting or messaging. ANDERSON then asked about how much trouble he was going to get into.”
That Skype exchange, according to Les Anderson, is when his son first learned the teen was actually just 14. After that, he stopped communicating with her.
“He had no clue he had done anything wrong,” says Amanda Anderson.
All along, Zach Anderson cooperated, said his dad. Michigan authorities arrested him Feb. 24. He posted bond, enabling him to keep living at home with his parents until he was jailed after sentencing April 27. He’s set for release sometime in July.
'HOOK UP, HAVE SEX, SAYONARA’
Call their social app-enabled rendezvous a cautionary tale of the times, one of the consequences of the high-tech, always-connected, Internet-everywhere age we live in.
That’s how Wiley, the judge, seemed to view it, as did Vigansky, the prosecuting attorney, and even Gardiner, Zach Anderson’s original lawyer.
“The difficulty in the age and stage that we’re in is, you can meet folks online, you know virtually nothing about them, you ... agree to ... meet and everything happens way ahead of the getting-to-know-each-other process, including getting to know how old someone actually is,” Gardiner said.
Vigansky said there had been “a little rash” of encounters in Berrien County of late like the one between Zach Anderson and the 14-year-old girl. There had been two of them, anyway. He took a dim view, sarcastically alluding to “this great website called Hot or Not.”
“You went online, to use a fisherman’s expression, trolling for women, to meet and have sex with,” scolded Wiley. “That seems to be part of our culture now. Meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this.”
'JUST FINDING HIS WAY’
Les and Amanda Anderson, seated in the living room at their home, which looks onto a small inlet of the St. Joseph River, are of a similar mindset. They have four boys — Zach Anderson is the second oldest — and they’ve always tried to instill the importance of saving sex for marriage.
“That’s probably been the hard part for us,” says Les Anderson, wearing a yellow T-shirt reading “Justice 4 Zach/Give his life back!”
Times change, though. Young people do things differently.
“He wasn’t looking to prey on a girl. He was looking to hook up and wherever that went is where that went. I think they had some commonalities and they chatted,” Les Anderson continues. “You get a picture they send, they like each other and they go from there.”
Still, he doesn’t want one incident to completely derail the life of his son, whose room is decorated with a few remaining mementos of his youth, including Concord Little League and Concord Football League trophies. After graduating from Concord High School last year, he worked a factory job for a spell, decided it wasn’t for him and enrolled last January in Ivy Tech, planning to focus his studies on computers and cybersecurity.
“He was just finding his way. He was starting to find direction in what he wanted to do,” says his dad.
Her son, a skateboard aficionado, is “a very likable kid and very tech-minded,” says Amanda Anderson. “Always can rig up any of the TVs, the DVD players, the computers. We always have Mr. MacGyver around.”
'THEY SET THEM UP TO FAIL’
He was getting biblical counseling before going to jail and connected with the pastor at Granger Community Church, the family church. In a letter of apology directed to the girl and her family, submitted as part of his request for HYTA status, Zach Anderson reflects ruefully on the way things went.
“I met you through an online dating service but I realize now that those sites don’t encourage healthy relationships. I wish we would have talked more first before deciding on hanging out because then I would have had more time to realize it wasn’t a good idea,” he wrote.
Such after-the-fact soul-searching notwithstanding, it may not be enough, and Les Anderson worries that everything is in jeopardy.
Per Wiley’s sentence, Zach Anderson faces a long list of restrictions during the five years of probation. He can’t have a computer, except for schooling. Can’t have a smart phone or any other device that connects to the Internet. Can’t live anywhere with Internet access. Can’t have an account with Facebook or any other online social network.
He can’t have contact with anyone 17 or younger, his siblings excepted. Can’t live within 1,000 feet of a school. He faces a daily 8 p.m. to 6 a.m. home curfew. He’s to continue his studies, in consultation with his field agent, but can’t take any computer or computer science classes, which had been the planned focus of his Ivy Tech education.
“This is what got him in trouble in the first place,” the judge said in sentencing.
To Les Anderson, the restrictions are extreme, the requirement to get on the sexual offender registry unnecessary. “Instead of trying to rehabilitate people, they set them up to fail because there are so many restrictions on them,” he said.
That’s why he, his wife and the rest of the family are fighting. They’ve hired Grabel to investigate the legal recourses potentially at Zach Anderson’s disposal, especially to ease the registry requirement. They’ve created a Facebook page, “Justice 4 Zach Anderson, Elkhart.” They seek donations to help offset legal and other costs, $30,900 and counting. They’re selling yellow “Justice 4 Zach” T-shirts.
“Anybody that’s got common sense looks at this and they’re just blown away,” says Les Anderson. “It comes back to the punishment does not fit the crime. Regardless of how you feel about this, the punishment is way too harsh.”