Lambda Lore

Weber State official convicted of kidnapping in ’94 because he was gay

In April 1994, the 42-year-old director of academic advisement at Weber State University, Dr. Phillip O. Austin Ph.D., was charged with aggravated kidnapping, a first-degree felony. A 20-year-old man named Colby Clifford said he was kidnapped by Austin after he offered him a ride into Ogden and then began making sexual advances toward him. When Clifford refused, he claimed that Austin pointed a .38-caliber pistol at him and locked the car doors, virtually kidnapping him. Clifford then claimed that as the car came to a rolling stop, he jumped from the car, ran, and called the Roy police.

A month after the so-called kidnapping, Clifford was visiting the Ogden campus to retrieve his school records to enroll in the Navy. He then spotted Austin in the administration building, found out his name, and again called the police. Authorities arrested Austin, who acknowledged he had given Clifford the ride, but denied he threatened him with a gun for sexual favors, saying that he didn’t even own a gun. He was charged with a first-degree felony of aggravated kidnapping and booked into the Weber County Jail. He was released on $20,000 bail to wait for his arraignment and trial.

The jury trial of Austin began in September. Two surprise witnesses for the prosecution were called who also said they had been sexually approached by Austin. They testified, however, that Austin never displayed a gun or used force to keep them in his car. To prove aggravated kidnapping, the state had to show that force was used to kidnap the victim for sexual purposes. Austin’s defense lawyer asked 2nd District Judge Stanton Taylor to disallow the testimony; however, the Weber County Deputy Prosecutor said their testimonies showed Austin’s pattern of behavior and would thus bolster Clifford’s testimony as to what had happened in March when Austin picked up Clifford.

Clifford testified that he only escaped from Austin by leaping from the moving vehicle. Austin’s defense lawyer called an accident expert who testified that if Clifford had slid that far as he claimed, he would have suffered major injuries and his clothes would have been shredded. When Clifford reported his alleged kidnapping to the Roy police only 20 minutes after the incident, there were no signs of injury to his body or clothing. Clifford could not even produce the clothes he had on at the time of the incident, saying he had given away the jacket he was wearing that day.

When Austin was called to testify, he admitted that it was his “protocol” to pick up young men at bus stops, offering them rides, but said he never used threats or force, and never had used a gun to gain sexual favors from anyone. Austin said he tells his passengers as soon as they get in his car that he’s gay. If they show him any interest, he then makes a proposition to take them back to his residence. However, he insisted, if the man is not interested, he simply dropped them off at their request.

To prove a charge of kidnapping in Utah, prosecutors had to present evidence that a person was detained against his or her will for a “substantial” period of time. Clifford, by his own admission, was only in Austin’s vehicle for a few minutes. However Austin was being charged with “aggravated kidnapping” which has no time limits, but it does require proof that a weapon was used or there was an intent to commit an additional crime.

Austin’s lawyer, in his closing comments to the jury, said that it was not illegal to be a homosexual in Utah and that it was not illegal for one adult to proposition another adult. The lawyer also said Clifford’s allegation that Austin pointed a gun at him was not true as that no weapon was ever obtained by investigators.

The three-man, five-woman jury then received their instructions from Judge Stanton Taylor before beginning their deliberations. The prosecutors, nevertheless, persuaded the judge to instruct jurors that if they could not find sufficient evidence to convict on first-degree aggravated kidnapping, they could find Austin guilty of simple kidnapping, a lesser felony.

The jury, having deliberated less than three hours, found Austin guilty of second-degree kidnapping. The lesser charge of simple kidnapping carried a sentence of 1-15 years in prison instead of the 5-years-to-life sentence for the more serious crime. And by finding that no gun was used in the incident, the jury also rejected an added five-year penalty for using a weapon during the commission of a crime.

In contrast to August, earlier in the year, 3rd District Judge David Young had sentenced the murderer of Douglas Koehler to a much lesser prison sentence for fatally shooting Koehler, a gay man, in the head. His killer, David Thacker, could have been sentenced to 1-to-15 years in prison. But that was “too high a penalty,” according to Judge Young who reduced the penalty to zero-to-five years, also imposing a one-year firearms enhancement.

Austin’s lawyer, filed a motion for an “inconsistent verdict” by the jury because he said his client could not have held the victim against his will if no weapon was involved. He said the trial evidence also showed there was no prolonged restraint by Austin, and that Clifford was not exposed to any serious bodily harm.

Austin blamed his troubles on homophobia and said, “Because I’m gay, the jury found me guilty of kidnapping. I’m gay, not a criminal.” Austin told reporters that “two and a half days were spent talking about my homosexuality and only half a day was spent on the evidence.”

Even though investigators never produced a weapon, in November 1994 Judge Taylor dismissed the defense motions and ruled that Austin’s moving car was the “restraint” and that the risk of serious harm came from Clifford’s escape from the moving car.

Austin was sentenced to 1-to-15 years in prison. While awaiting appeals, which delayed his imprisonment for three years, Austin was fired by Weber State University. In 1997, Austin lost all his appeals and was sent to prison for two years until he was paroled in March 1999. He was nonetheless sent back to prison in December 1999 for refusing “sexual deviancy therapy,” according to parole records.

Finally, in January 2000, the Utah Court of Appeals overturned Austin’s conviction. A brief opinion issued by the Appeals Court ruled that kidnapping was not “a lesser included offense” of aggravated kidnapping, and jurors were wrongly advised that they could find Austin guilty of the uncharged crime. “It follows that the defendant’s conviction must be, and it hereby is, vacated.”

Austin died in 2008 at the age of 56 and his obituary read in part “Philip was a gifted professional writer and patron of the arts. He was an independent, intelligent, passionate man of high spiritual character. His first priorities were always helping people and his passion for fine art.”

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