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Three Face 22-Month Minimum Sentence in Rape of Retarded Girl

April 24, 1993

NEWARK, N.J. (AP) _ Though convicted as adults of raping a mentally retarded girl, three former high school football players will do time at a campuslike facility for young offenders and could be free in less than two years.

″The defendants are very young, they are not hardened criminals,″ Superior Court Judge R. Benjamin Cohen said Friday. ″They are not without redeeming value.″

He sentenced the three to up to 15 years in a youth facility, but they could be out 22 months if deemed rehabilitated. A fourth defendant was sentenced to probation and community service.

The sentences outraged advocates for the retarded and for women’s rights.

″The judge didn’t have the courage to uphold the conviction of the jury,″ said Carol Vasile, a coordinator of the Essex County chapter of the National Organization for Women. ″The clear message to women is that the crime of rape is not worthy of punishment.″

Christopher Archer, 21, and Kevin Scherzer, 22, were convicted March 16 of two counts of first-degree aggravated sexual assault. Scherzer’s twin, Kyle, was found guilty of one count. Bryant Grober, 21, was sentenced to probation for his conviction on a third-degree charge of conspiracy.

Cohen cited their ages and the likelihood that they could be rehabilitated in sentencing three of them as young adult offenders - under age 26 with no prior record.

The sentence normally carries a four-year minimum, but sending them to a youth facility means the three could be released within 22 months if deemed rehabilitated.

Cohen ruled the three given jail terms could remain free on bail pending appeal. A state appeals panel upheld that decision.

The victim, with an IQ of 64 and the social skills of an 8-year-old, testified that she was promised a date with a popular boy if she would go to the basement of the Scherzer home March 1, 1989, in Glen Ridge, a suburb of New York.

The jury concluded the victim - 17 years old at the time - was mentally defective and that the youths she considered friends should have known that.

The jury also determined that force or coercion was used in inserting a broom, baseball bat and stick into the girl’s vagina.

The defense contended that the young woman consented to all of the sexual acts and presented evidence of her past sexual experience.

Archer, Kevin Scherzer and Grober all said they were sorry. Kyle Scherzer chose not to address the court.

Archer and Kevin Scherzer could have received up to 40 years in prison. Kyle Scherzer could have received up to 30 years in prison.

Essex County prosecutor Clifford Minor said the sentence sends a ″frightening message,″ discouraging rape victims from reporting the crime.

But the president of the Essex County Association for Retarded Citizens said the sentence does not reverse gains made in the trial toward balancing the need to protect retarded people and ensuring their ability to function in society.

″The prosecutors took the charges seriously, pursued them diligently and were able to persuade a jury these persons were guilty,″ said Herbert Lev. ″I don’t think this will set us back.″

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