Joshua McCabe was convicted after jury trial of First and Second Degree Child Molestation and Second Degree Incest. At McCabe’s second sentencing, McCabe requested a suspended prison sentence, utilizing Washington’s Special Sex Offender Sentencing Alternative, commonly known as a ‘SSOSA’. McCabe’s daughter did not want her father to go to prison, and supported the SSOSA, which the sentencing court clearly understood. The SSOSA statutory scheme states the victim’s preference is to be given “great weight” in the Court’s determination whether to grant a SSOSA.
In practicing criminal defense for more than four decades, I have done countless child molest cases. I always tell the client about the SSOSA option. I always recommend that the client not go to trial if they are appropriately accused and wish to take advantage of the SSOSA option. I advise them not to take their chances at trial and force the victim to testify. The State will never agree to a SSOSA if the defendant puts the victim through such stress. Sure enough, the State argued at resentencing McCabe was not amenable to community-based sex offender treatment and opposed a SSOSA.
Mr. McCabe was convicted of bail jumping, as well as the above charges, in 2021. That charge was vacated later, and he appeared again for resentencing in 2023.
Here is the Court colloquy which indicates that the Court did indeed take ‘great weight’ in considering the daughter/victim’s wishes.
[F]irst of all, I will acknowledge that the victim in the case was not of the opinion that Mr. McCabe needed to be incarcerated back in 2021. She made it pretty clear at that time, as did a number of people that were supportive of Mr. McCabe, that they didn’t believe that he needed anything other than treatment. He didn’t need to be incarcerated for a lengthy period of time. I take that into account. I do not discount that that’s your feeling. I was aware of it and I understand you’re aware of it as well.
Just as I would not a keep a person from being on the SSOSA alternative solely because of the victim’s feelings, I would not impose SSOSA where I thought it was inappropriate, solely because of the victim’s feelings. I’m just trying to say that your opinion is your opinion and I do take that into account. But, I have to balance a number of other factors related to whether I think treatment based in the community is appropriate, as opposed to ordering treatment as part of a prison sentence.
McCabe gave a presentence interview in 2021 after the jury trial. Apparently, his ‘story’ changed before resentencing in 2023, when he had obtained a SSOSA psychosexual evaluation. The change in story did not sit well with the Court at resentencing.
The Court expressed concern over the differences between what McCabe told the initial presentence investigation interviewer and what he said during his SSOSA evaluation, suggesting that it showed a lack of amenability to treatment.
So, at almost every aspect of the interview that you gave between 2021 and what you told the evaluator two years later, you’ve changed what it is you’ve said. And, that causes me concern. Because, one of the things that I have to see is whether a person is amenable to treatment in the community as opposed to being in treatment in a more structured setting. And, I’d feel more confident about it if I have a person who is at least taking the initial steps of being honest with yourself and I can’t tell whether you can, you are, or aren’t.
The trial court noted that given his history of substance abuse and failure to stop drinking even after community-based treatment, McCabe would benefit from a treatment in a “more structed setting” rather than in the community and denied SSOSA. McCabe received a 129-month prison sentence. Division II upheld the trial court’s denial of a SSOSA under the “abuse of discretion” standard.
What should be taken away from this case is that a Court will not grant a SSOSA when a defendant goes to trial, putting a child victim under great stress, then gives inconsistent information to a presentence interviewer and SSOSA evaluator.