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COA: Incest age defense can’t win post-conviction relief

November 17, 2016

A man convicted of incest for a consensual sexual relationship with his biological aunt couldn’t persuade the Indiana Court of Appeals that he was entitled to post-conviction relief. The man claimed ineffective assistance of counsel for failing to argue in his defense that the man’s aunt was older than 31.

Kyle Pavan of Elwood was 23 when he was charged in 2007 with the Class C felony, to which he later pleaded guilty and was sentenced to six years in prison, with two years executed on work release and the balance suspended to probation. His probation was revoked in 2014, at which time he filed a PCR petition. His aunt, who was 34 at the time, also was charged and convicted.

In his PCR petition, Pavan relied on I.C. 35-41-4-2(e) that bars prosecution for incest, child molesting, vicarious sexual gratification, child solicitation or child seduction after the alleged victim reaches age 31. The state said the statute was inapplicable and that the prosecution was timely filed within the general five-year statute of limitations for Class C felonies.

“Pavan’s appellate argument is based on a flawed interpretation” of the statute, Judge Robert Altice wrote for the panel, because he argued his aunt was the victim. “Although Pavan frames the issue in terms of the statute of limitations, his argument boils down to an assertion that it is not illegal to engage in consensual incestuous intercourse with a family member over the age of thirty-one. … We decline to adopt the interpretation Pavan suggests.”

Altice noted the other crimes to which the statute applies are crimes against children. “To accept Pavan’s request would be to embrace an absurd and illogical interpretation of both the statute of limitations and the incest statute,” Altice wrote. “Pavan’s statute of limitations argument is without merit, and trial counsel cannot be deemed ineffective for failing to pursue a meritless defense.”

The case is Kyle Pavan v. State of Indiana, 48A02-1512-PC-2125.
 

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