Emily Welker, Published January 27 2014
Barnesville man sentenced for sexually assaulting intellectually disabled quadriplegic
Clay County District Court Judge Galen Vaa sentenced Michael Ray Herbst, 46, to six months longer than what Clay County prosecutors sought. Vaa called the case one of the most severe he’d ever seen.
“She was at the total mercy of the defendant,” Vaa said. “It just perplexes me someone would do such a thing.”
During Monday’s sentencing hearing, Herbst’s attorney, Alan Sheppard, asked the court for a reduced sentence of three years. He said Herbst did not realize the extent of the woman’s vulnerability.
Herbst thought the woman’s impairments were exclusively physical, rather than mental, Sheppard argued, and that her difficulties with speech were due to her not being a native speaker of English.
Herbst experienced remorse after watching a video of the woman talking about the case, Sheppard said.
Prosecutors played a video recording of the woman’s victim impact statement, in which she described in halting, childlike speech how the assault made her “uncomfortable, sad and scared.”
“I do not like what Michael did that night,” she said. “What he did was wrong, and he should go to jail for a long time.”
Court documents say the Fargo woman met Herbst in 2013 after she accidentally contacted him through the telephone.
In May, Herbst took the woman to his home and had sex with her, even though she told him she didn’t want to, documents say.
Prosecutor Pam Harris said Herbst had to have known the extent of the victim’s impairment when he met her.
“When you see this victim, I don’t know what the misunderstanding could have been,” Harris said. “To say he didn’t know there were mental disabilities, I think, is a little disingenuous.”
Vaa said while remorse was a reason to mitigate a sentence, the case was “way at the top” in terms of severity because it was perpetrated on a victim who was a spastic quadriplegic with cerebral palsy.
In court, Harris said Herbst entered an Alford plea to one count of felony third-degree criminal sexual conduct with a victim who is mentally impaired or helpless. Under the Alford plea, Herbst didn’t admit guilt but acknowledged there was enough evidence to convict him.
Herbst will receive credit for two days already served in jail. His family attended the hearing, but declined to comment.
Readers can reach Forum reporter Emily Welker at (701) 241-5541