The Musings of

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Tuesday, August 30, 2005

She was Lola in slacks... Dolly at school... Dolores on the dotted line.

I have not been following this case (more here, here, and here), but I think it is instructive on how confusing our legal system can be.

The facts are somewhat simple. Michael Koso, a 22-year old Nebraskan, had a relationship with Crystal Guyer, who is currently 14-years old, when he was 21 and she was 13. Guyer got pregnant, and both parties and their parents agreed that the two should get married. Nebraska does not allow people under the age of 17 to get married, but nearby Kansas has no legislated minimum age for marriage as long as the parents give their consent and a judge signs off on the arrangement. So Koso and Guyer got married in Kansas and returned to live in his parents' home in Nebraska.

Unfortunately for the happy couple, the local constables found out about their, um, situation, which led to Nebraska Attorney General Jon Bruning filing a charge of sexual assault against Koso that could result in a 50-year sentence if Koso is convicted (this was after the local prosecutor refused to prosecute the matter following the marriage).

My first thought when first reading about this matter was that the AG was violating the rule of law. If this couple was married in Kansas, and Nebraska recognizes marriage in Kansas, then under what law does the AG intend to convict the man? Is it ever illegal to have sex with your own wife? These thoughts arose before I read on and discovered that Koso had sex with Guyer in Nebraska before they were married. This, of course, it an important distinction. There is a huge difference, under the law, in saying, as some news outlets have, that Koso is getting charged for having sex with his 14-year old wife, and saying that Koso has been charged for having sex with a 13-year old girl who later became his wife.

There is apparently no doubt that, under state law, Koso has committed statutory rape and sexual assault of a child. He had sex with a minor out of wedlock. The controlling Nebraska statute states as follows:
Sexual assault of a child; penalty.
28-320.01. (1) A person commits sexual assault of a child if he or she subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older.
The statutory rape law covers individuals 19 or older who have sex with someone 16 or younger. Koso was 19 at the time of the alleged intercourse and Guyer was 13. Interestingly, there does not appear to be an exception under this statute for married couples. In fact, based on my limited research, it appears that there is not common-law exclusion for married couples under the statute. See State v. Willis, 223 Neb. 844, 394 N.W.2d 648 (1986). In looking solely at Nebraska law, this makes sense -- to be convicted you must have sex with someone under 17, but only individuals 17 or older can get married. The problem, of course, arises in situations such as this where the marriage took place legally in another jurisdiction.

It is a principal of family law that courts in one state will recognize valid marriages in another "unless contrary to natural laws or statutes." Shea v. Shea, 294 N.Y. 909, 63 N.E.2d 113 (App. Div. 1945). I can't help but wonder, considering Nebraska's seemingly strict marriage age laws, whether the courts would consider any marriage where one of the parties was under 17 to be contrary to their statutes and therefore, like gay marriage, void (I submit that there is an argument that the legislature must specifically declare a type of marriage void for it to be so. See Loughran v. Loughran, 292 U.S. 216 (1934)). This would certainly explain the attitude of the AG who stated, "Of course the marriage is valid ... but it doesn't matter. I'm not going to stand by while a grown man ... has a relationship with a 13-year-old -- now 14-year old -- girl."

If this is true, then where is Nebraska drawing the line? Would the AG have taken Koso to court if he had married Guyer before they had sex on the theory that (1) there is no marriage exception to the statutory rape laws and/or (2) that Nebraska will not recognize marriage to a 14-year old? That's what a bright-line rule would demand. And if it would be statutory rape to have sex with your 14-year old wife in Nebraska, would that also apply to having sex with your 16-year old wife? If not, why?

As if this wasn't confusing me enough, I can't help but consider the equity argument here. I've stated before that it seems strange to me that men can be considered sex offenders when they end up marrying their "victims." In the words of one commentator, doesn't the marriage "balance the scales of social justice"? By prosecuting Koso, isn't Nebraska punishing him for "doing the right thing" and marrying the mother of his child? And if Koso is sent to prison, isn't Guyer (and their child) the one who is really getting punished by removing her husband and support when she needs it most? Isn't she the one these laws were designed to protect? Like I said, complicated.

Of course, in the end, the AG will get some great press, so I suppose the thing isn't a total waste.
Centinel 12:12 AM #


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