Mislabeled a Sex Offender: The Kelmar Family’s Fight for Justice

My name is Brian Kelmar, and I am the father of a 24 year old son who has autism and auditory and sensory processing disabilities. Our nightmare began almost six years ago, right after my son graduated high school. It’s a case of the “perfect storm” that resulted in my son being punished and treated as an outcast in our community and in society.

Do words like “trusting, bullied, eager to please, and not understanding social situations” sound familiar? These words describe my son and how he interacts and/or experiences the world around him.  Like others with autism, he had few friends growing up, let alone a girlfriend.  That core need for friendship hasn’t changed. He continues to long to fit in and feel included, and have friends in his life that he can talk to. So, when a female friend of my younger son started texting my son, he was so happy that he found someone nice to talk to.

The girl’s texts started innocently enough with just small talk.  The communication began when he was away at a college summer orientation where he was learning about the autism program he was to begin in the fall. The texting from her soon became very sexually aggressive, and he did not understand what the texts were about. He answered her questions with short words or answers, such as “like”, “what”, “ok”, and “huh”? She pointed out to him, “you really don’t understand what I am talking about” in regards to her sexual statements like “friends with benefits” and “hooking up,” along with more graphic content which he did not understand. When reading the back and forth texting, it’s clear to anyone reading these messages that they were going right over my son’s head.

After he returned from orientation, she repeatedly began asking him to meet with her. He had no idea of how to handle her sexually aggressive messages, and he certainly didn’t foresee what would happen next. When he met her in person, she became very sexually aggressive.  Like other people with autism and sensory issues, he can easily become overwhelmed and shut down, similar to a computer that has too many programs open at the same time.  This is exactly what happened during her sexual advances. When his mind “rebooted” and his thought process reengaged, he told her to stop.  She did and he took her home.

That same evening the police came to our house in the middle of the night. Since the front door is closest to my son’s room, he answered it.  Not understanding the situation and thinking the girl was in trouble because she was the aggressive one, he answered their questions before I got to the door.  The police took him to jail for two days until I could get him released on $100,000 bail.

In an instant, my son’s life was changed forever.

My son and our family entered a criminal justice system that we had no idea how to maneuver, and a system that had no idea about autism. Our lawyer had no experience with autism or working with people with disabilities. We were told by the attorney that the only option was to plea bargain. Later I discovered that is how most cases are resolved, through plea bargaining (experts estimate that 90 to 95 percent of both federal and state cases are resolved through plea bargaining).

 

During the sentencing phase, the judge heard testimony from the court appointed forensic psychologist with comments like:

“It was the alleged victim that was grooming him for a sexual encounter”
“He did not understand the situation”
“She was the aggressor”

These statements were all true based on the evidence of the text messages.  The judge understood the situation, and gave my son a ten year suspended sentence.  We never had any written plea bargain agreement. Then he was sentenced to 10 years probation. What we did not find out until after the sentencing was that due to the way the law was written, he would not only be on the sex offender registry, but he would be put on the violent sexual predator list for life.

This was absolutely devastating and the consequences last a lifetime.  This punishment will limit his ability to be employed, where he or our family can live, where he can travel to visit family members or even his future family (if they are under 18).  He can’t even travel to see his own grandmothers now because of the laws affecting travel between states.  This whole experience has been like a slow, agonizing psychological death sentence for him, and for our entire family.

Our hope is that other people with intellectual and developmental disabilities (I/DD) and their families can learn from our experience. Here are some lessons learned:

1. Never let your child (regardless of age) speak to authorities without you or another advocate and a lawyer present – no matter what.  While there are various organizations like The Arc’s National Center on Criminal Justice and Disability® (NCCJD) and some state agencies which can step in and mitigate the situation, the best scenario is to ensure the person’s rights are protected during questioning.

2. Contact NCCJD which can provide assistance in cases like this, and can also provide quality, effective training for criminal justice professionals in your state.  You will often find that many law enforcement, attorneys and other criminal justice professionals in the criminal justice system have had no training on I/DD. Through NCCJD’s information and referral and technical assistance services, their staff can work with your local chapter of The Arc and other community or state agencies to provide practical solutions that avoid destroying people’s lives before the snowball effect of the criminal justice system starts rolling.

3. If at all possible, hire a lawyer who is has experience/expertise in both the specific crime specialty (i.e., sex offenses) and defending people with I/DD. Since few attorneys have this experience, at the very least, he or she should be open to learning more about disabilities and working with NCCJD and other advocacy organizations to provide the best defense possible.

4. Finally, never agree to a plea bargain until it is written down for your approval and you know all of its consequences before you agree to it.

The sex offender registry laws must take into account a person’s disability so that true justice is served. If you or your family has experienced a similar situation, and are willing to share it, please send your story to NCCJD at NCCJDinfo@thearc.org. It’s time to bring this issue to light, and reveal the real life implications these laws have on people with I/DD and their families. We are well aware that ours is only one story of many, but together – our collective stories have the potential to become the catalyst for nationwide change. If we don’t speak out, who will?

3 thoughts on “Mislabeled a Sex Offender: The Kelmar Family’s Fight for Justice

  1. Brian, I am so glad you have this posted this. I hope others who have a similar situations will come out and post their story. I know we are not alone in VA. This has to be the worst state for not acknowledging autism and intellectual disabilities within the criminal justice system.

    Our family has a similar issue as you have. I am not going to post a lot of info about it here due to some ongoing legal issues we still have outstanding.

    I have a 26yr old Aspergers son with other numerous intellectual deficits who was arrested at age 19 for “aggravated sexual battery” The alleged victim lied to the police about the whole incident and created a situation that did not exist. When he was arrested, I told the arresting officer he was autistic, he had a lawyer, and to not ask him any questions. The investigating officer was told this information and proceeded to question him anyway. In her eyes he was an adult and it didn’t matter. She told him that during the interview (He was an adult). During the interview, it was clear to us and other professionals he was manipulated in answering the questions (the questions were only about his actions. Nothing more. It is clear all they wanted was a confession and win the case. At the end of the interview, the investigating officer took him out of view of the camera and directed him to “not discuss this case with his parents as he is an adult.” (We have this on tape.) (Note: This is a kid who spent 12yrs in “Special Ed” and has always counted on us to assist him and depended on us in all decision making and understanding of LIFE. He was taken by LE and interrogated with no one to advocate for him. Even after they had been told he was autistic thus intellectually disabled.)

    To not get into too much more detail, he never told us anything about this case. Even after we repeatedly asked him about it. He complied with the LE Officer who told him to not discuss this case with his parents. We were asked to take a plea deal even though we knew nothing of what happened. Our lawyer explained to us that if we didn’t, he faced “life +20” and would only exit the prison in a casket. Interesting enough, when my son was told this, he leaned over to me and whispered “what should I do dad?” I think this is clear evidence he had no understanding of the legal system and what he faced. However, according to our legal system, he was an adult and this was his decision to make.

    He took the plea, and during the hearing, the lawyer had to lean over and tell him what to say to the judge. His final answer to the judge for why he is taking the plea? “I’m guilty, I guess.” (His lawyer told him to say that. Not his words, but someone else’s.)

    During sentencing, the judge gave him 6yrs in prison, 5 1/2yrs suspended, 5yrs supervised probation, 15yrs unsupervised probation, (He wont be off probation until he is 40yrs old), and a lifetime as a “violent sex offender.” (Note: At the beginning of this hearing, the judge admitted “there was a mental evaluation done on our son but, he had not read it” prior to this hearing.

    There is more but, I will leave that for a later date.

    What we learned from this:

    I agree with Brian, find a lawyer who knows and understands autism and is willing to fight for the rights of the intellectually disabled. Our lawyer had none of these traits. Every time we brought it up (mental issues), he dismissed them. (Note: We are not well off people and had already invested $20,000 for his defense and could not afford to hire another lawyer. Supposedly, we had the best one in the county??)

    If you have a special needs child (autism, etc), consider a guardianship. That way, the police can not question him/her unless you are present and give consent. You are in control at that point and can advocate for them. (Note: We did not have one for our son, he is high functioning and there are some down sides to having this for them. Speak to a lawyer, we did not see this coming.)

    Talk to your legislators. We need REFORM!!!! The sex offender laws here in VA “lump everyone” into the same “pot” as someone who dragged someone into the bushes and had their way with them. There are no mitigating circumstance. Prosecutors need to take a “common sense” approach to each case. I say there is a difference.

    Last, if you read this blog Brian has initiated on the ARC website, and you have a similar situation concerning the CJ system either here in VA or somewhere else in the nation, I ask you to post your story. Speak out and let us share this with one another and let’s take a stand together and put an end to this injustice!…Bill

  2. My name is Carol and I am the mother of a 29 year old son with IDD. In many ways my son functions at the level of second or third grade. He is not capable of living independently. Our nightmare began in 2012. My son was being sexually molested by a friend who lived next door. This person also showed my son that he was also having the underage female in the house touch him in a sexual manner. My son participated two times in this action with the female unaware of the consequences just mirroring what he was shown by his molester. The underage female told an adult in the house what was happening. My son was arrested and prosecuted right along side his own molester. My son is now a registered sex offender. He was forced to leave our home because the underage female lived next door. My son cannot live independently so my husband, his father, had to move out with him. I not only lost my son being with me but my husband also. My son’s life was special recreation activities with his peers and special Olympics. He can no longer participate in these activities because he is on the registry. Due to no socialization he has been regressing and we have had to put him on antidepressants.
    This nightmare has destroyed our lives. We have spent many thousands of dollars trying to fight this travesty in court. We all need to get our stories out there so changes can occur in our judicial system. This is an extremely important issue and I implore any families who are suffering this situation to tell your story.

  3. Please put me, LuQman AbdurRahman, on your Team to expose dishonest governments. Please believe that too many people do not take this condition of dishonest governments serious. The ignorance of what this have to do with me and my problems: 1. No concern for how the system works or not working for all people. 2. The ignorance of Constitutions-rights that can be denied, Congress-who make the laws that may go without being fairly administered under no Checks and Balances 3. Contracts-livelihood needs are under trade and Contracts 4. Courts that may not say what the law is fairly for everyone. When people are not concern about how dishonest governments wasting public money in wrongfully convicting the innocent. Then our children and our grand-children are not safe.

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