Sex-assault offense needs approval again

THE ISSUE A constitutional amendment would allow conviction of continuous assault of a minor without agreement about specific times and dates.

STATE legislators have tried for nearly a decade to overcome a hurdle placed by the state Supreme Court in prosecuting a defendant of continuous sexual assault of a minor. A constitutional amendment to deal with the problem was approved by 65 percent of voters two years ago but must and should be ratified again because of a legal glitch.

The problem occurred in a 1996 high court reversal of a man's conviction of sexually assaulting his 6-year-old son because the child could not provide the dates, times and places for each abuse.

In a dissent, Justice Paula Nakayama complained, "Particularly when the accused resides with the victim ... and the abuse has occurred on a regular basis and in a consistent manner over a prolonged period of time, the child may have no meaningful reference point of time or detail by which to distinguish one specific act from another."

Nakayama urged enactment of a "continuous sexual abuse of a child statute" similar to a California law, and the Legislature passed such a measure in its next session. However, the Supreme Court struck down the law in 2003 by a 3-2 vote, ruling that it violated the state Constitution.

Legislators dutifully addressed the problem again in their 2004 session, unanimously approving a constitutional amendment, and voters approved it. However, the measure had not been titled as a constitutional amendment, and the House had not given the requisite three votes because of procedural quirks.

In response to a challenge by the American Civil Liberties Union, the Supreme Court struck down the amendment last year. The Legislature went through a more careful process of approving it again in this year's session.

Without the amendment, jurors must agree on the dates, times, places and other circumstances of each of at least three acts of abuse to convict a person of a continuing course of conduct in sexual assault crimes involving victims under age 14. The amendment would allow jurors to convict the defendant if they agree that sexual assault occurred at least three times, even if they cannot agree on the specifics.