Senators hear measures on sex crimes, hindering apprehension

LEGISLATURE: The Guam Congress Building in Hagåtña is pictured Sunday, Sept. 12. David Castro/The Guam Daily Post

Lawmakers heard testimony on a pair of bills intended to strengthen criminal sexual conduct laws involving offenses against minors, as well as another that adds to the number of acts considered to be hindering apprehension or prosecution.

The first measure, Bill 142-36, adds that an individual is guilty of committing fourth-degree criminal sexual conduct if the victim is at least 14 and under 18 years of age. It also removes the provision reducing the offense to a misdemeanor for first-time offenders, unless the victim is 18 years or older.

Deputy Attorney General Stephanie Mendiola stated that more than 100 criminal sexual conduct cases are referred to the Office of the Attorney General each year, some of which involve children as young as 4, with most cases involving a parent, relative, household member or authority figure as the perpetrator. According to Assistant Attorney General Christine Tenorio, 10% of victims who are minors see their offenders charged with misdemeanors because of the current law.

Mendiola said the OAG supports Bill 142, but offered an amendment specifying the victim to be at least 14 years old and under 16.

"This approach affords both respect for and reconciliation with our age of consent law," Mendiola said. "To be clear, this does not eliminate the ability to prosecute fourth-degree CSC where victims are 16 or 17. Those cases will continue to be charged under the existing framework."

The age of consent in Guam is 16 and the inconsistency between Bill 142 and current consent law led John Morrison, deputy director of the Public Defender Service Corp., to say that his office was opposed to Bill 142 as written. Morrison also said the bill appears to be an effort to minimize plea bargaining for criminal sexual conduct cases.

"I'm not sure that that's essentially fair to the people that touch these types of cases," Morrison said. "It certainly hasn't been my experience that the attorney general is going out of their way to cut pleas for fourth degree on every case that they get a hold of. ... I think these cases are prosecuted zealously. So I would take a certain amount of exception to seeking to limit them in their discretion."

Morrison said criminal sexual conduct cases are difficult and sometimes the best result the prosecution can get is a negotiated disposition, whether that means the victim doesn't remember what happened despite making an initial report or the victim's family is adamant that they don't want the victim to testify.

"I do think it is important to have a charge that can sometimes be negotiated but still is going to trigger major consequences for the defendant," Morrison said.

Bill 143

The second measure, Bill 143-36, adds provisions to first- and second-degree criminal sexual conduct law, so that an individual is guilty of those crimes if they are also an employee or contractual service provider of the school or district in which the victim is enrolled, or is a nonstudent volunteer for a school, or government employee assigned to provide services to the school, and uses their status to gain access to or establish a relationship with the victim.

Bill 143 garnered support from the attorney general's office, with Mendiola stating that the bill recognizes that teachers and other school officials are in positions of authority over students by the nature of their employment. Thirty-nine states and Washington, D.C., have criminalized "educator sexual misconduct" in varying degrees, she said, before recommending more simplified language for the bill. Two public policy issues the attorney general's office raised was whether the bill will apply regardless of whether the victim is of the age of consent and whether higher education settings are overseen by the bill.

Morrison said using one's position over a victim is already addressed by current law and the provisions in Bill 143 as written casts too wide of a net.

"Not only does this not require that the person use their authority over the victim to gain their consent, it doesn't even require that the actor come in contact with the victim, as written," Morrison said, referring to the provision regarding school employees. "This could be a 21-year-old who just finished school and is substitute teaching just within the same school district of an 18-year-old that he's dating."

Regarding the argument that current law already addresses cases in which a person uses their authority over a victim, Mendiola said it does, but the law requires that prosecutors show what position that person holds and that it is a position of authority over a victim, and that the person used their position to coerce the victim into a sexual act.

Tenorio said these elements are difficult to meet and Bill 143 would protect students without making it so difficult.

Bill 144

The final measure, Bill 144-36, would make it so that withholding information or failing to notify an agency about noncompliance with a person's pretrial, court-ordered, parole or probation requirements would be considered hindering apprehension or prosecution. Hindering would be considered a third-degree felony if the charge against the person involves a minor below 16 years of age.

Mendiola said the OAG's concern with the bill is who it applies to and how they can establish beyond a reasonable doubt that a person withheld information with the intent of hindering apprehension or prosecution.

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