Justices split, find ‘jurisdictional gap’ in child molesting offense committed by minor who is now an adult

Neither the juvenile court nor the criminal court has jurisdiction over a man who allegedly committed child molesting while still a minor but whom the state did not attempt to criminally charge until he was over 21, creating a “jurisdictional gap” in cases where an offender ages out of the juvenile system, according to the Indiana Supreme Court. But the court’s majority holding was challenged by two dissenting justices, who argued the Indiana Legislature “would never have intended” for the alleged criminal act to go unpunished.

Justice Geoffrey Slaughter wrote for the majority that also included Chief Justice Loretta Rush and Justice Steven David in State of Indiana v. Anthony J. Neukam, 21S-CR-567.

The case focuses on conduct defendant-appellee Anthony Neukam allegedly committed before he was 18 years old. According to the state, Neukam molested his young cousin from the time she was 10 until she was 14, when they were both minors.

Later, when Neukam was 20, the state charged him in Dubois Circuit Court for acts he allegedly committed as an adult. Then when he was 22, the state filed a delinquency petition in juvenile court for the acts he allegedly committed against his cousin while still a minor.

But relying on D.P. v. State, 151 N.E.3d 1210 (Ind. 2020) — which held that juvenile courts lack jurisdiction over delinquency petitions once the accused is 21 — the state dismissed the juvenile case and instead moved to amend the criminal case to add counts of child molesting for Neukam’s alleged conduct before he turned 18. The criminal court denied that motion “due to the age of the defendant at the time of the alleged offenses to be added to the charging information.”

On interlocutory appeal, the Court of Appeals of Indiana affirmed, ruling that criminal courts lack jurisdiction when an alleged delinquent act occurred before an individual turned 18, but when the individual is over 21 when the state files charges.

The majority justices also upheld the trial court’s ruling in a Thursday opinion, writing that Neukam’s case “falls within a jurisdictional gap only the legislature can close.”

“Today’s jurisdictional question turns on whether Neukam’s alleged conduct was a criminal or delinquent act — or whether the same act could be both, i.e., whether a delinquent act committed before the age of eighteen could ripen into a crime once Neukam became an adult,” Slaughter wrote for the majority.

The majority answered that question with a “no,” pointing to Indiana Code §§ 33-23-1-4 and 31-37-1-2(1), which address criminal and delinquent acts, respectively.

“… (S)ection 31-37-1-2 treats a ‘delinquent act’ as one that ‘would be an offense’ — a crime — ‘if committed by an adult,’” Slaughter wrote. “The phrase ‘would be [a crime]’ suggests a delinquent act is not a crime — and in fact ‘would be’ a crime only if an adult did it — in which case, it would no longer be a delinquent act because only a child can commit such an act.

“… Because these statutes — sections 33-23-1-4 and 31-37-1-2 — show that criminal and delinquent acts are distinct classes of conduct determined by age, the circuit court does not have jurisdiction over the acts Neukam allegedly committed before turning eighteen,” he continued. “And as we held in D.P., the juvenile court lacks jurisdiction because Neukam is older than twenty-one.

“Thus, these statutes compel us to hold that no court has jurisdiction over the charges arising from Neukam’s alleged conduct before his eighteenth birthday,” the majority concluded. “We recognize this jurisdictional gap means certain delinquent acts will not be prosecuted — for no other reason than the delinquent act was not reported until the alleged offender turned twenty-one.

“… Ultimately, like the dissents, we are not blind to the weighty and far-reaching policy concerns implicated by today’s decision. But separation of powers requires that we echo our words from D.P.: If this ‘result was not the intent of the legislature, then it — not we — must make the necessary statutory changes.’”

In his dissent, Justice Christopher Goff wrote that the majority’s holding allows Neukam’s alleged acts of child molestation “to go unpunished” and “judicially repeals the juvenile waiver and transfer statutes” — results he said the Legislature “would never have intended.”

In his analysis, Goff said the question was not how to define Neukam’s alleged conduct, but rather his status as a child or an adult.

“To be sure, the Court’s interpretation of the words ‘crime’ and ‘delinquent act’ is reasonable. But its reading of those terms in isolation from — rather than in harmony with — the language used in our Juvenile Jurisdiction Statute overlooks statutory evidence of legislative intent,” Goff wrote. “In my view, it’s equally, if not more, reasonable to interpret these statutes — collectively — as vesting exclusive original jurisdiction in the juvenile court only when the offender is currently a child, leaving us with the circuit court as the default court of general jurisdiction in cases where the offender is an adult, regardless of how we define his conduct.”

Goff went on to find that the statute granting juvenile court jurisdiction, I.C. 31-30-1-1(1), is ambiguous, and the majority’s interpretation of that statute “leads to a result that is both unjust and absurd.”

“For these reasons,” he wrote, “I would hold that the circuit court has jurisdiction over an individual who committed the offensive acts as a child but who ages out of the juvenile system.”

Justice Mark Massa, in his own dissent, concurred with that portion of Goff’s dissent.

Continuing his dissent, Goff wrote that because a juvenile court doesn’t have exclusive jurisdiction over an offender who is no longer a “child,” a circuit court should determine whether to exercise its jurisdiction. He pointed to I.C. 31-30-3-1, which allows a juvenile court to waive a child into adult criminal court.

“The analysis required in a waiver determination is necessarily a fact-sensitive inquiry, one typically left to the discretion of a judicial officer on a case-by-case basis,” Goff wrote. “In my view, trial judges should be authorized to make the same type of inquiry in cases like Neukam’s.

“… In other words, under the facts of this case, the important policies underlying the statute of limitations for child molesting may outweigh the equally important rehabilitative goals of our juvenile-justice system,” he continued. “On the other hand, the State waited an extraordinarily long time to file the delinquency charge.

“… In my view, a judicial officer, entrusted by their community to balance safety and fairness, should be empowered to make this difficult call.”

While admitting his solution was “imperfect,” Goff said it “addresses the jurisdictional gap created by the Court’s opinion … .” He called on the Legislature to create a “statutory fix” to the gap.

But Massa called Goff’s procedural approach “unnecessary.” He pointed to persisting questions of “penological, jurisprudential, and moral blameworthiness.”

“Chief among them: how to hold an adult accountable for a crime committed while still a child, when the adult system is more punitive and the juvenile system more therapeutic,” Massa wrote. “Clearing the jurisdictional roadblock cannot solve that riddle, it can only provide a forum.

“These cases must go somewhere,” he continued. “The General Assembly never contemplated safe harbor for alleged sex offenders who turn twenty-one before their victims reveal.”

In a footnote, Massa added that during the 2021 session of the Indiana General Assembly, House Bill 1198 “addressed this jurisdictional conundrum.” The bill passed both the House and Senate, he said, but died in conference committee.

“The best we can do is adjudicate these matters in a court of general jurisdiction and take age into account as a mitigating factor at sentencing,” Massa concluded. “While I might assume the General Assembly will explicitly allow it next year, Justice Goff provides an analysis that would make new legislation unnecessary and immediately close an unintended loophole that will remain open until the legislature can act.”

But addressing both dissents, the majority wrote, “We find it plausible — not absurd — the legislature would prioritize this policy for juvenile offenders who have matured into adulthood — in hopes they would leave behind their delinquent past.” The majority also said Goff and Massa “ignore() our modest judicial role.”

As for Goff’s analysis, the majority wrote, “Justice Goff’s belief that practical considerations based on policy trump statutory text runs afoul not only of separation of powers, but of our entire constitutional scheme.”