‘Gap in sexual offense law should be handled legislatively’

Superior Court Associate Judge Joseph N. Camacho is concerned about the gap in the sexual offense law but believes the proper approach would be to handle this issue legislatively.

Camacho said if both sexual assault and sexual abuse of a minor statutes apply in a particular case, the Commonwealth potentially runs the risk of multiplicitous charges and confusion of the jury.

“As tempting as it is to simply bend the adult sexual assault statute into the sexual abuse of a minor statute, the Judicial Branch must respect the separation of powers. The Judiciary can only interpret the law as enacted,” he pointed out.

Camacho discussed the sex offense law in his amicus curiae brief filed Friday in the CNMI Supreme Court in connection with a criminal case against George Norris Langu Jr., an 18-year-old student accused of raping his 16-year-old neighbor on Saipan. The judge asked the high court to deny the government’s petition for a writ of mandamus.

An amicus curiae (friend of the court) refers to a brief filed in court by an entity that is not a party to the case.

The Office of the Attorney General filed the petition for a writ of mandamus, asking the CNMI Supreme Court to step in to correct the alleged mistake Camacho made in dismissing the first-degree sexual assault charge filed against Langu.

Assistant attorney general Matthew C. Baisley asked the high court to instruct Camacho to reinstate the sexual assault charge. Baisley also asked the high court to instruct the trial court that there is no legislative loophole in the first-degree sexual assault statute.

In his amicus brief, Camacho said what is required is for the Legislature to make a simple amendment to plug the loophole. Camacho cited that Title Six, Chapter 3 of the Commonwealth Code provides two parallel schemes for sexual assault/abuse, depending upon the age of the victim.

He said minor victims are treated differently from adult victims, and in cases of minor victims, the case is charged under the sexual abuse of a minor provisions of the statute.

He said there is no consent provision in the sexual abuse of a minor statute, as minors are presumed to be incapable of consent. If the victim is not a minor, Camacho said, then sexual assault statute would apply.

He pointed out that sexual assault and sexual abuse of a minor are not lesser-included offenses of one another.

Camacho said the Legislature treats these two types of victims differently, in part because of the idea that minors are incapable of legally consenting to sexual activity, and in part because sexual activity is considered an adult behavior that only adults may consent to.

Camacho said when the Legislature revised the statutes related to sexual offenses, the Legislature was troubled by the fact that under the law at the time, the laws related to sexual abuse of children “[made] no distinction between different types of conduct that an offender might engage in; nor does it draw any distinction based on the respective ages of the offender and the victim.”

In particular, he said, the Legislature highlighted situations where, under the previous law, “a 50-year-old offender having sexual intercourse with an infant child is treated the same as an 18-year-old offender who fondles the breast of his 15-year-old girlfriend”—both would be charged with the same crime and would receive the same maximum sentence.

In making these provisions, Camacho said, the Legislature was concerned with differentiating between different age groups.

As a part of these revisions, he said, the Legislature separately broke down sexual assault and sexual abuse of a minor into four degrees (first to fourth degrees).

In ensuring that there would be protection for teenagers close in age, called the “Romeo and Juliet exception,” Camacho said the Legislature inadvertently left a “black hole” with regard to teenagers who would fall within the exception but who do not consent.

The “Romeo and Juliet exception” refers to provisions in the Criminal Code decriminalizing sexual contact between an adult and a minor, provided there is only a small age difference between the two. This exception applies to defendants who are 18 and older who are having sexual relations with a minor who is 16 or 17 and less than three years younger than them.

Camacho said when a victim is a minor, the case is charged as a sexual abuse of a minor.

He said if the minor falls within the age gap provided in sexual abuse of a minor in the second degree, third degree, and fourth degree, the “Romeo and Juliet Exception,” there is no statutory provision to allow the alleged offender to be charged instead under the sexual assault statute.

Camacho said the government is focused on the wording of sexual assault in the first degree statute, without taking into account the separate schemes established by the Legislature in designing the sexual offense statute.

“Quite simply, minor victims are treated differently from adult victims, and the code sections pertaining to minor victims unfortunately do not address what occurs if there is an alleged sexual offense with a minor victim where the defendant and the alleged victim would fall within the ‘Romeo and Juliet exception,’” he said.

Camacho said using the adult sexual offense statute of sexual assault to fill a gap in the minor sexual offense statute of sexual abuse of a minor would potentially erode the protections to minors provided under the sexual abuse of a minor statute.

Camacho said the first factor required for a writ of mandamus is that the party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief desired.

The judge said the government argues that, as a finding of no probable cause is not in itself appealable, they have no other avenue for relief.

Camacho, however, emphasized that, prior to filing this writ, the government filed its motion to reconsider. Rather than allowing the trial court to hear the pending motion to reconsider, the government filed its petition for writ, he said.