Child molestation convictions thrown out, more at risk because o - Hawaii News Now - KGMB and KHNL

Child molestation convictions thrown out, more at risk because of loophole

Bryan Muller Bryan Muller
Edward Ayau Edward Ayau
HONOLULU (HawaiiNewsNow) -

It's a technicality that has already forced two child molestation convictions to be overturned.

Bryan Muller was convicted of sexually assaulting a 12-year old when he was 19. But the State Court of Appeals ruled last year that court documents lacked one key line, which stated that Muller and the young victim were not married.

Just last week, the child molestation conviction of Edward Ayau was also thrown out for the same reason.

"The law says that a person is only guilty if they were not married to the other person," says defense attorney Victor Bakke. "That language has to be in the document." 

Bakke says prosecutors should have known better and should have been using that line in indictments years ago.

"By not doing it and waiting for 2-3 years for this decision to come down... every case that took place during that 3-year period has now got to be thrown out or modified," says Bakke.

Honolulu's Prosecuting Attorney Keith Kaneshiro is currently out of town, but a spokesman says his office did start adding the line before the ruling last year, but are now reviewing child molestation cases that could be affected.

Kauai's Prosecutor, Justin Kollar, says he respects the court's ruling, but feels the required language is not necessary.

"It certainly seems self evident that if an adult is accused of having improper sexual contact with a person who is less than 14 years old, it goes without saying that they are not married to each other," says Kollar, who also points out that state law would have prevented victims that young from marrying anyway.

The cases that are being thrown out are being done so 'without prejudice' meaning charges can be re-filed. But Kollar is concerned that the victims will be traumatized again if they are forced to go through a second trial or another grand jury hearing.

"A huge amount of strain on the people involved, especially the victims who are often children," says Kollar.

But Victor Bakke says if prosecutors had included the one line in the first place, this wouldn't be an issue.

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