In the Matter of the Welfare of: B.A.H., Minn.Ct.App., 4/22/2013. Okay, two cousins, well under sixteen, are having a sleepover. Staying up late, drinking Dad’s pilfered liquor, doing a little mutual sexual “experimentation.” Here’s what Judge Toussaint said took place between B.A.H. and X.X.:
While lying in bed together, B.A.H. removed X.X.’s jeans and put his mouth on X.X.’s penis and sucked on it. B.A.H.then asked X.X. to suck on B.A.H.’s penis, but X.X. declined. At that point, B.A.H.removed his own clothing, straddled X.X., and placed X.X.’s penis into B.A.H.’s anus. B.A.H. began masturbating and moving up and down on X.X.’s penis. B.A.H.asked X.X. to touch him, but X.X . declined.
When the Corner Stone types talked to X.X. he said that it wasn’t like B.A.H. had forced him into playing around; rather, B.A.H. had just convinced him to do it.
The state charged B.A.H. with violating Minn.Stat. 609.342, subd. 1(g), which required the state to prove that B.A.H. had a “significant relationship” with X.X.; that B.A.H. engaged in sexual penetration with X.X. who was under 16 years of age. Hmm. Seems like that could go either way.
And that’s exactly what the court of appeals concluded. In its view, the state could just as likely have charged X.X. as B.A.H.. Or both. Since the state chose only to charge B.A.H. the court said that it had engaged in arbitrary charging, in violation of B.A.H.’s right to equal protection. The court winks at the near unfettered prosecutorial discretion to determine who and what to charge to reach what seems like the correct outcome:
Minn. Stat. § 609.342, subd. 1(g),is unconstitutionally vague and encourages arbitrary and discriminatory enforcement when applied to situations where both parties are under the age of 16 and each person has a significant relationship to the other because, in such a case, the statute does not provide any basis for establishing which party is the actor.
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