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Tuesday, November 15, 2005

Ind. Courts - Court of Appeals to hear case that tests child-sex laws

On Oct. 30th Kevin Corcoran of the Indianapolis Star had a long and comprehensive story headlined "Case challenges child-sex laws: Teen charged with molesting, but he was under the age of consent at time of the sexual encounters." It began:

William C. Bopp could be convicted of child molesting in Marion County, even though he was a child himself when he engaged in sexual activity with a younger girl.

The Indianapolis teenager has told the Indiana Court of Appeals that charging him violates his constitutional rights, because state law says children younger than 14 who engage in sexual activity are presumed victims and can't legally consent.

When underage children engage in sexual activity with each other, however, they sometimes face criminal charges that can follow them into their adult lives, even when no physical force or threat of force is involved. * * *

Bopp's attorney, Robert W. Hammerle, has asked the Court of Appeals to throw out the charges against his client, saying the case is an example of child-sex prosecutions run amok.

Marion County Prosecutor Carl Brizzi disagrees, but he says the Bopp case could clear up uncertainty surrounding how child-sex laws are applied.
"I don't agree that if you can't consent, you can't form the proper intent to commit a crime," Brizzi said. "Either the Court of Appeals can weigh in or the legislature can weigh in." * * *

Hammerle said he isn't seeking to change Indiana law regarding teens who engage in sexual activity. Instead, he told the Court of Appeals that Indiana's child-sex laws are being unconstitutionally applied. He wants the court to determine whether it's legally permissible to charge children who can't consent with child molesting when the use of force is not alleged.

The state's child-molesting law includes no minimum age for prosecution, but criminal intent must be proven beyond a reasonable doubt, and consent is no defense.

Hammerle said he has no objection to prosecutors filing child-molesting charges in cases involving juveniles when force is involved. He just doesn't think the laws should be applied when they lead to "absurd" results, such as criminalizing preadolescent and adolescent sexual exploration.

In Indiana, there's no clear line that separates the victim and the accused in such cases. Several other states require minimum differences between the ages of the defendant and the victim of two to five years before criminal charges can be filed. "This case resonates far beyond Bopp," Hammerle said. "Every parent has a child literally walking on a trap door."

A side-bar addressed the Indiana law, Indiana precedent, and other states' laws.

Today a brief story in the Star reports that:

The Indiana Court of Appeals has agreed to hear a case challenging the constitutionality of how the state's child-sex laws are being applied in cases involving children too young to legally consent to sex. * * *

Bopp was charged with two counts of child molesting in February, more than two years after the relationship ended. He is accused of being sexually active with the girl from the time he was 9 until a month after he turned 14. She was 6 when the sexual activity started and 11 when it ended, according to court records. The appellate court could clear the way for his trial or dismiss the delinquency charges against him.

Posted by Marcia Oddi on November 15, 2005 07:44 AM
Posted to Ind. App.Ct. Decisions