No sex crime charges for sheriff candidate’s son accused of sex with a minor

KOSCIUSKO COUNTY, Ind. -- The son of a local deputy running for Kosciusko County Sheriff is accused of having sex with a fourteen-year-old girl.

Investigators say Zachary Smith, 18 at the time, also gave a group of girls, some as young as 14, margaritas, moonshine and marijuana.

Smith is charged with battery and maintaining a public nuisance. But do his charges fit the crime?

The victim, a witness, and her parents don't seem to think so.

According to police records, the group of girls were watching fireworks at Lake Wawasee in Syracuse on July 4, 2021 when they met a group of boys looking to continue the party.

One of those boys was 18-year-old Zachary Smith.

It was their first time meeting Zach and they say he knew how young they were, just 14 years old at the time.

"Everybody had this idea, let's go sneak out, let's go sneak out. And these boys that we had all talked and stuff and they were like yeah we'll pick you up and take you to this place."

Because of their ages, we are not using their names in this story, instead calling them the victim and a witness.

"They picked us up and we ended up going to the storage unit," the witness said. "It has like a loft in it and like couches and chairs and LED lights. There was bras hanging on like from the raft, the ceiling under the lofts. We both thought we literally were just gonna hang out."

The girls say Smith and his friends took them to a storage unit in North Webster and they felt pressured to smoke weed and drink alcohol.

"Everyone was like 'take it, take it, take it. And Zach was one of those people but they were like 'you can take it, you'll be fine,'" the witness said.

The victim says it was her first time being high and drunk.

"I really didn't think I smoked very much at all but it did make me feel like really weird and I didn't think it was normal. But I guess I couldn't really know that because I had never done it before," the victim said. "It was actually the next morning they were telling me a bunch of things that I was saying and I didn't like remember a lot of it."

The girls say they snuck out around midnight and didn't get back till about 4 in the morning.

In the four hours they spent at the storage unit, the 14-year-old victim admits to agreeing to sex with Zach.

"I remember him telling me like if we were gonna do that, like have sex, that I couldn't tell anybody like not a single person every because he could get in trouble. So, I obviously said I wouldn't because I didn't want him to get in trouble."

According to Indiana state law, no one under the age of 16 can consent to sex.

And under the influence of drugs or alcohol, no matter their age, consenting to sex is tricky.

Tiffany: "Are you uncomfortable with the fact you had sex with him?

Victim: "Yes because I still think that it wasn't like myself."

The victim says she knew Zach's dad was a well-known Kosciusko County deputy and running for sheriff and that made her a little nervous.

Jim Smith, is the republican candidate, up for election this November. He declined an on-camera interview for this story.

He did share a statement saying in part: “I did not participate in the investigation or attempt to influence it in any way, publicly or privately… As a father, I will always love and support my son, but I will not support or excuse any actions he may take that violate the law or cause harm to others."

Right now, his son Zach, is accused of battery and maintaining a public nuisance for the night he allegedly had sex with the victim.

The victim's parents don't think it's enough. We also decided not to identify them in this story.

"Our daughter was made to promise that she wouldn’t tell because he would go to jail. He knew what he was doing," they said. "The facts and the evidence don't support the crimes and the charges."

Zach's case is assigned to a special prosecutor in Whitley County because his mother works at the Kosciusko County Prosecutor's Office. This also ensures his father can't influence the case.

So why is there no mention of a sex crime in Zach's charges?

In the incident report taken by Indiana State Police, one of the preliminary offenses listed is sexual misconduct with a minor.

The victim's parents want to know how that could drop to simple battery.

"All the language in the affidavit speaks to a sexual type of charge. Even if it's the bare minimum of fondling, it's all sexual," they said.

Matt Kubacki, an attorney and former deputy prosecutor in Marion County, says the law isn't as straightforward as it sounds.

"As difficult as it is because sex cases, you're just never going to have an outcome or resolution that makes everyone happy," Kubacki said.

Kubacki says proving sexual misconduct in this case depends on a lot of moving parts, not just the victim's age.

"No more than four years apart, she has to be over the age of fourteen, they have to have some sort of ongoing relationship. If she's under the influence it has to be voluntary," Kubacki said. "It can't be something she didn't know was happening and those are all met."

Because the victim consented, voluntarily took drugs, and continued a relationship with Zach, the defense has enough of a case to prove Zach is not guilty of a sex crime. That’s why former prosecutor Kubacki says he’s only charged with battery.

"What happened in this particular case is they had to make a charging decision and they reached a decision on what they thought they could prove. As difficult as it is, it does seem to fit," Kubacki said.

It's an exception to the state law, better known as the Romeo and Juliet defense, that allows an adult to have sex with a minor as long as they are no more than four years apart.

Because the victim was 14-years-old in this case, Zach can walk away without being charged with statutory rape or sexual misconduct.

"I cannot think of any other offenses they could have charged that would have actually stuck or would not have had a very serious defense to them," Kubacki said.

Kubacki says there's nothing unusual or unethical about Zach's charges. His professional opinion is that there were no outside political motives at work.

The victim's parents are still asking for more accountability.

"This battery should be of a sexual nature but it's simple. It's nothing, nothing to do with what the case originated as. Do you really think a 14-year-old under the influence of drugs, can consent to anything?" the victim's father said. "If you people think that then I think there's something wrong with your morals."

Their concern is that more young, impressionable girls in the community will fall victim next.

"We were both in agreement, we don't want to crucify him. He is young it’s a fact he's young but we wanted him to have accountability. Because the things he did it wasn't really an accident he knew what he was doing," the victim's father said.

"As a mother, I did what I could to protect other girls in our community," the victim's mother said.

Zach Smith, the now 19-year-old accused of having sex with the 14-year-old victim, also declined to go on camera.  

Zach is due in court August 16 for a change of plea hearing. He pleaded not guilty earlier this month, and it's expected he'll change that to 'guilty.'

He could spend anywhere from 6 months to 7 years in prison but he won't have to register as a sex offender.