Cody Duane Scott Herrera, 17 at the time, had quietly climbed through the teenage girl’s bedroom window in southern Idaho.

The two had planned to watch a movie that night in March 2015, but then Herrera started touching her. The 14-year-old girl later told police that she asked him to stop but that he continued, and then he removed her clothes.

He started to sexually assault her, the girl later told police.

She started crying.

He told her it would be okay, but he didn’t stop, according to the criminal complaint filed in Twin Falls County.

Herrera, now 19, pleaded guilty to rape and was sentenced last month to five to 15 years in prison, according to the sentencing documents. He also was placed in the state’s “rider” program, in which the court retains jurisdiction over the case, sending the inmate to an Idaho Department of Correction facility for a period of time to “receive intensive programming and education,” according to the department.

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If the inmate completes the program properly, the judge can choose to grant him probation instead of prison.

It’s that sentence — and the judge’s explanation of it — that has since thrust Herrera’s case into the national spotlight.

During the sentencing hearing, Judge Randy Stoker told Herrera that assuming he completes the program and is put on probation, one of the terms will be no more sex until marriage, according to the Twin Falls Times-News.

“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” Stoker told him last month.

Stoker was not immediately available for comment on the case. Herrera’s attorney, Daniel Brown, did not immediately respond.

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Twin Falls County Prosecutor Grant Loebs called the judge’s move a “fairly routine sentencing on a fairly routine case.” Loebs said probation is intended to restrict certain behaviors related to the crime. For instance, for someone convicted and sentenced for drunken driving, the terms of probation may stipulate no drugs or alcohol. In the same way, a sex offender may be required to report to his probation officer before he goes on a date.

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In Herrera’s case, the judge said that if he is indeed given probation instead of prison, the terms of that agreement will include no sex outside of marriage.

“We don’t just put sex offenders on probation and then not care what they do,” Loebs told The Washington Post. He emphasized that probation is an agreement and, assuming that offer is made, Herrera can reject it. But he might not get an offer at all if he turns this one down, Loebs said.

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Idaho, it seems, in interesting in another way: It has an old-style fornication law, although Loebs said that it’s not enforced.

It states:

Any unmarried person who shall have sexual intercourse with an unmarried person of the opposite sex shall be deemed guilty of fornication, and, upon conviction thereof, shall be punished by a fine of not more than $300 or by imprisonment for not more than six months or by both such fine and imprisonment; provided, that the sentence imposed or any part thereof may be suspended with or without probation in the discretion of the court.

Loebs said that people who are on probation are prohibited from breaking laws — and this is apparently one of them. He told the Times-News that “a judge’s purpose is to keep them from committing another offense. A judge has right to order things to keep him from doing that.”

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Still, some legal minds have questioned the judge’s statement.

“I think it infringes on his constitutional rights,” Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law, told the Times-News about the proposed celibacy. “I think if he appealed,” Sanders said, “he would win.”

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Sanders pointed out two cases that Herrera could use to defend himself from an overreaching probation condition. One case out of Texas that went to the Supreme Court protected the rights of all citizens to engage in sexual activity in private with another consenting adult.
The other case, from Oklahoma, protected the general right to procreate after the state tried sterilizing criminals.
“There, the court said there is a right to procreate,” Sanders said. “In this particular situation, we seem to have an order infringing on (Herrera’s) right to procreate. A court can’t dictate how he decides to procreate.”
Sanders said she’s never seen a ban on sex as part of a probation requirement, calling it “bizarre” and saying it would also raise Fourth Amendment issues.
“Probationers already give up a lot, especially in terms of law enforcement monitoring,” Sanders said. “But how would you even enforce this? It seems to be quite intrusive if they can just bust into his bedroom to make sure he’s not getting it on.”

Herrera and the girl met on Black Friday in 2014, according to the criminal complaint.

The girl had lied to him, telling him she was 16, and she kept their budding relationship from her parents. When her mother found out about it, she contacted Herrera and his mother and told them that her daughter was only 14 and was not allowed to date, according to court records.

The two continued to communicate online — until March 2, when Herrera raped the girl.

Herrera was charged on Sept. 16, 2015, with felony lewd conduct with a minor under 16, according to the criminal complaint. Then in April 2016, he accepted a plea deal for rape but was not required to register as a sex offender; he was also ordered not to have any contact with the victim, according to the agreement.

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Prosecutors said that Herrera has fantasized about a 13-year-old girl, watched pornography portraying rape and has had 34 sexual partners, according to the Times-News.

“I have never seen that level of sexual activity by a 19-year-old,” Stoker, the judge, told Herrera during the sentencing hearing, according to the newspaper.

Ahead of Herrera’s hearing Jan. 27, the girl’s mother read a victim impact statement in court. “It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the mother said, according to the Times-News. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”

This story has been updated.

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