Judge denies motion to dismiss sexual assault charges against former Badger High School teacher
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ELKHORN—The case against a former Badger High School art teacher accused of sexually assaulting a student will continue after a Walworth County judge denied a motion to dismiss Thursday.
Defense attorney Donna Kuchler claimed the charges Donald Hammon is facing should be dismissed because of gender discrimination.
Hammon, 51, is charged with two felony counts of sexual assault of a student by school staff.
Hammon inappropriately touched a then 17-year-old female student twice in February at the school, according to the criminal complaint filed in March.
The student lured Hammon when she began sending Hammon sexual pictures of herself in December, Kuchler wrote in the motion to dismiss based on selective prosecution.
On Thursday, Kuchler questioned why the now-18-year-old is not facing child pornography or sexual exploitation of a child charges for the pictures taken and sent when it was the pictures that led to Hammon being charged.
Selective prosecution requires each person in question to have committed a crime similar in nature and severity.
The girl could be criminally charged for taking and sending the photos because she was of age when she sent the photos, Kuchler said.
The pornography charges “fall under the same umbrella” as the sexual assault charges Hammon faces and show the prosecution discriminated against Hammon, Kuchler said.
“The state talks about Mr. Hammon and how he's supposed to restrain himself, is in a position of trust and power,” Kuchler said. “(The girl), as a legal adult in eyes of the criminal justice system, has a legal and moral obligation as an adult to restrain herself from making child pornography and distributing it.”
The acts were not forced and the girl wanted to be in a relationship with Hammon, Kuchler said Thursday, referencing the girl's diary.
In a written response to Kuchler's motion, prosecutor Valerian Powell said the prosecution has discretion on whom to charge with what crime, if any crime at all.
The two crimes are not similar enough for the motion to be granted, Powell said Thursday.
“There is such a difference in being a high school student, being in your early formative years, being subject to discipline and grades and general tutorship of a teacher versus being that teacher and having that trust and having that power,” Powell said. “There are radically different levels of power and responsibility between the two.”
There is a “huge distinction” between the two crimes, Judge David Reddy said before dismissing the motion.
At an August motion hearing, Powell argued that evidence of Hammon's other sexual acts with students be admissible.
Powell filed a motion in June to introduce evidence of other instances in which Hammon is accused of having inappropriate contact with two other female Badger High School students, according to his motion.
The two students were 18 at the time.
The additional evidence shows discrepancies in statements Hammon made to police and how Hammon was similarly “grooming” the girls, Powell wrote in a brief.
Evidence from the alleged acts should be inadmissible because they were consensual actions between adults. The information would only paint a negative picture of Hammon for the jury, Kuchler wrote in a brief in opposition to the evidence.
Reddy granted Powell's motion in August to admit evidence from one girl. The evidence from the other lacked context and timeline and was not allowed, Powell said.
Hammon is free on a $5,000 cash bond. He will appear in court next at 2:30 p.m., Tuesday, Nov. 10, at the Walworth County Judicial Center.
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