WASHINGTON — The two teenagers who were recently cleared in a highly publicized rape case centering on Maryland’s Rockville High School are now fighting to stay in the United States and against newly announced child pornography charges.
On Friday, Montgomery County prosecutors dropped first-degree rape and first-degree sex offense charges against Henry Sanchez Milian, 18, and Jose Montano, 17, who was charged as an adult.
State’s Attorney John McCarthy said an intensive investigation had cast doubt on the 14-year-old victim’s initial report that she had been forced into a boys’ bathroom and raped repeatedly.
Attorneys for Sanchez Milian and Montano had argued the events in the high school bathroom were consensual.
In dropping the rape charges, McCarthy announced Milian and Montano would be charged with possession of child pornography, but would not take questions on his charging decision.
“This is a charge that is almost never brought in Montgomery County, or around the nation, for simply one person asking another to share photos of another student, who created, allegedly, the images, and sent them to her paramour,” said Sanchez Milan’s lawyer, Andrew Jezic.
“We’re going to be investigating around the country, whether or not these facts lead to prosecution,” said Jezic. “We don’t think they do, anywhere in this country, and if they don’t, that will be one of our defenses.”
Jezic said the girl had created sexually explicit videos of herself and sent them voluntarily to Montano, who discussed them with Sanchez Milian.
“While that may be, if true, immoral behavior and disappointing, it’s certainly not criminal, and should never be criminalized,” said Jezic. “This is essentially the criminalization of adolescence in America.”
McCarthy’s spokesman, Ramon Korionoff, declined to comment on whether his office has prosecuted other adults in similar situations, in which they had received images, rather than generated them.
“This is fair warning for high schoolers around the country who have a cellphone, and their parents who pay the cellphone bills,” said Jezic.
Montano’s attorney, Maria Mena, had called the pornography charge against her client “egregious.”
Jezic said the child pornography charge could jeopardize his client’s ability to stay in the United States. Both Sanchez Milian and Montano had entered the country illegally.
“If he were to be found guilty of these ‘throwaway charges,’ he is very likely to be deported, and have no defenses in immigration court,” Jezic said.
“Henry was facing immigration proceedings even if these charges had never existed, but now that they exist it would foreclose his arguments,” his attorney said.
Montano, who is now being prosecuted in juvenile court on the new child pornography charge, made his first appearance Monday. After the hearing he was taken to his holding cell, and arrested by U.S. Immigration and Customs Enforcement agents, The Washington Post reported.
Montano’s immigration attorney said he will attempt to have his client released from federal custody on bond, and returned to his family.
ICE spokesman Matthew Bourke was not available for an immediate comment.