Former student Michael Zeher III, who was accused of rape after attending a fraternity party September 2017, was found guilty of false imprisonment and sentenced to three years of probation under Act 346.
Zeher allegedly raped a female student after escorting her to Bear Hall from a Sigma Tau Gamma party. He pleaded not guilty to a charge of rape last September.
Prosecutors representing the 20th Judicial District dropped the rape charge against Zeher. Instead, Zeher pleaded guilty to one count of false imprisonment Aug. 28 at the Faulkner County Circuit Court and received punishment that includes three years of probation and a fine of $1,500, under Act 346, or the Arkansas First Offender Act.
The act is a rarity that allows a defendant to plead either guilty or no contest to charges against him in exchange for a sentence of probation. If the defendant does not violate the conditions of his probation, then the charges will be expunged and cleared from his record after the probationary term is completed.
20th Judicial District Prosecuting Attorney Luke Ferguson told the Log Cabin Democrat that the plea deal under Act 346 was the best way to have Zeher plead guilty and retain a decision that would be fair to all parties, given the circumstances.
“Based on all the facts and circumstances of this case, I believe this outcome was fair and proper,” he said, according to the Log Cabin. “We reached a resolution that provided some accountability for the defendant’s actions while also being respectful of the victim’s need for closure and privacy.”
In reaction to a stream of online shaming after the sentence, attorneys representing Zeher reached out to the Log Cabin asking the Conway community to be understanding that Zeher’s rape charge was dropped.
Lauren Elenbaas, one of the four attorneys who represented Zeher in the criminal proceedings, told the Log Cabin that records provided by the prosecuting attorney “called into question allegations concerning intoxication and lack of consensual activity.”
Zeher and the accuser were friends from high school, and when the two arrived at Zeher’s room in Bear Hall, they engaged in a “sexual encounter in which she was mutually receptive,” defense attorney Frank Shaw said to the Log Cabin.
During the sexual encounter, a mutual friend walked in on Zeher and the accuser and started messaging
their group of friends about it on Snapchat.
Shaw identified that the issue at hand was that the encounter violated the norms of the friend group, the Log Cabin reports.
“This is not a rape case,” Shaw said, according to the Log Cabin. “In fact, it’s not even a sexual assault in the third or fourth [degree]. It’s not any kind of sex offense.”
According to the probable cause affidavit filed Sept. 11, 2017, by UCAPD officer Jake Moss, when the accuser was asked if Zeher had forced his penis inside her, she said “Yes.”
In Moss’s questioning of him, Zeher admitted to having sexual intercourse with the accuser for 5-10 minutes and that she was “incoherent” at times.
Zeher said that the accuser nodded her head yes when he asked her if she was OK with the sexual contact, but told Moss that he did not think the nod was “sufficient consent” to engage in sexual intercourse, according to the affidavit.
When Moss asked him why he engaged in sexual intercourse with the accuser even though he knew it was wrong, Zeher said it was because “he had liked her for a long time and that he ‘had feelings for her,’” according to the affidavit.
Photo from the Log Cabin Democrat.