That time Roy Moore refused to convict a child molester who abused a 4-year-old

Roy Moore has had a month or so to forget. Last week, the Washington Post broke the news that he sexually pursued a 14-year-old girl back when he was in his 30s. Since then, a total of five women have accused the Alabama senatorial candidate of harassment and abuse.

The allegations speak for themselves, although one case Moore recently heard as a state judge—when he refused to convict a child molester who abused a 4-year-old—sheds light on his backward views of sexual assault.

In 2015 when Moore was chief justice of the Alabama Supreme Court, he and eight other judges heard the case of Eric Lemont Higdon, a 17-year-old childcare worker accused of raping a four-year-old boy in his care. A local court convicted Higdon on two counts of sodomy, one for statutory rape and another for forcible rape. An appeals court later overturned the forcible rape charge, and the case eventually reached the state Supreme Court.

Eight of the justices in Montgomery ruled that the appeals court had erred and voted to leave the two convictions as originally ruled. The one judge who dissented? Roy Moore.

Alabama’s archaic definition of “forcible rape” requires that the victim fear for his or her life or suffer severe injury, and Moore, a strict constructionist in the tradition of Antonin Scalia, saw no evidence of this in the Higdon case. He wrote, “because there was no evidence in this case of an implied threat of serious physical injury…or of an implied threat of death, Higdon cannot be convicted of sodomy in the first degree ‘by forcible compulsion.’”

In Moore's view, the child was not injured in the course of the assault (at least not according to Alabama’s narrow definition, which ignores the psychological damage and trauma sexual assault victims can suffer), and because the 4-year-old trusted Higdon, he was not afraid for his life.

Ever the small-government literalist, Moore wrote in his dissent that “although this may be a noble cause in certain situations, policymaking is beyond the role of this Court.” He feared the Higdon ruling would set a precedent that could muddy future cases of nonconsensual sex between children: “This Court has potentially opened the door to cases in which a 10-year-old could be convicted of ‘first-degree sodomy by forcible compulsion’ for intercourse with an 8-year-old, or a 6-year-old with a 4-year-old, or a 16-year-old with a 14-year-old.”

Note the disparity between the examples cited and the 13-year age difference between Higdon and his preschool-age victim.

As Mark Joseph Stern writes at Slate, by no means should we assume that Moore projected his own penchant for pedophilia onto the Higdon case. To “suggest that judges may be projecting their own crimes upon certain defendants” is a “ridiculous logical leap that would turn many judges into secret murderers.”

Fair enough. But this case does teach us something about Moore’s thinking in the context of the numerous allegations against him. Clearly, Moore is of the mind that children are not physically harmed by sexual abuse unless they bleed or suffer broken bones. But we didn’t need the Higdon case to reveal this—we already knew that Moore doesn’t think rape is a big deal.