'97 child sex assault law faulted

By David Waite
Advertiser Courts Writer

The Hawai'i Supreme Court has struck down as unconstitutional a section of state law that was adopted by the Legislature in hopes of making it easier to prosecute people who sexually assault children repeatedly.

By a 3-2 vote, the high court ruled that a portion of the state law addressing "continuous sexual assault" is invalid because it denies the accused the constitutional right to due process.

The law, passed in 1997, makes it a single criminal offense for someone to repeatedly attack a child younger than 14 if the victim of those sexual assaults lives in the same home or the offender has recurring access to the child.

The law also requires a showing that three or more acts of sexual penetration or sexual contact with the minor have occurred.

The law was meant to address situations where children have difficulty remembering the specific dates and details about each assault.

The Supreme Court justices took issue with a section of the law that says a jury has to agree that at least three sexual assaults occurred, but need not agree on which acts constitute the requisite number.

The high court held that the defendant, a Maui man, was denied his right to a unanimous jury verdict.

Three of the justices concluded that the defendant was denied due process of law because the trial court did not require the prosecution to say which particular acts it was relying on in seeking the conviction.

In the Maui case, defendant Simeon Rabago lived in Pukalani with two girls, 10 and 7, who said they were sexually assaulted between August 1998 and October 2000.

At a trial in June 2002, the two girls testified that Rabago assaulted them and told them he would take a much younger, third child away from the home if the girls told anyone about what had happened.

The jury found Rabago guilty of two counts of "continuous sexual assault of a minor." Maui Circuit Judge Shackley F. Raffetto sentenced him to prison terms of up to 20 years for each count.

The Hawai'i Supreme Court decision, released on Friday, vacates the convictions and sends the case back to Circuit Court for further consideration.

Maui First Deputy Prosecutor Benjamin Acob said his office is considering its options, which include retrying Rabago or asking the Supreme Court to reconsider its majority ruling by justices Steven Levinson, Simeon Acoba and James Duffy.

Associate Justice Paula Nakayama and Chief Justice Ronald Moon dissented.

Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.