I get where Justice Dhanidina is coming from. I really do. The defendant committed a disgusting act. He convinced a mother to engage in oral sex with her three year old son. To say that I'm totally appalled by that is the understatement of the century. I'd absurdly evil. Made only worse once you read (as you learn in Justice Dhanidina's dissent) that in one of the videos of the crime, "the child begged his mother, 'Don’t touch it, don’t touch it! Don’t!
Don’t touch it,' and told her 'that’s enough. Mommy, that’s
enough.' [and] can be heard whimpering." O. M. F. G.
Everyone agrees that this is a huge crime. Everyone also agrees that to be guilty of aiding and abetting this offense (oral copulation with a child 10 years old or younger), the perpetrator needs to be over 18 years old. But the trial court instructed the jury that only the defendant needs to be over 18. Wrong. It's the direct perpetrator who needs to be over 18. In this case, the mother. So we all agree the conviction can't stand.
But what gets Justice Dhanidina's goat is the fact that the majority enters a judgement of acquittal on these counts. Even though, to be honest, I'm fairly confident that the mother here was, indeed, over the age of 18. If the prosecution had known that it needed to prove that the mother was over 18, I'd bet dollars to doughnuts they could easily do so. So, if a retrial was permitted, they'd almost certainly be able to establish what's required.
But, for better or not, that's not the way things work. You've got to introduce enough evidence at the first trial to convict. You don't get a second shot. That's the whole Double Jeopardy thing. So if you make a mistake, or forget to introduce evidence, that's on you. The defendant gets acquitted. Even if we're pretty much (or entirely) certain, based upon facts outside the trial, that the guy's in fact guilty (e.g., that the mother here is over 18).
That's not a pretty result. Either in the usual case or here. And Justice Dhanidina doesn't particularly like that outcome. (Nor do I.)
But it's the law. Reasonably so.
To avoid that untoward result, Justice Dhanidina says that while the instructions were wrong -- hence the conviction must be reversed -- but there was sufficient evidence of the mother's age. She had at least one child, was described by witnesses as an "older" woman who was an "adult," and told the defendant that "18" was the minimum age of anyone she'd have sexual relations with.
I get it.
But the thing is, while I'm looking at the exact same evidence as Justice Dhanidina, and on that basis, am fairly confident that mother is, in fact, over 18, I couldn't say that beyond a reasonable doubt. We have a video of the incident, but 21 looks a lot like 18 which looks a lot like 17. Maybe the mother is 17 and maybe she's described as an "older" adult in comparison to the three year old. We just can't be totally sure.
And that's what's required. If this was the only evidence adduced at trial -- say, at a retrial -- and the prosecution didn't introduce the mother's driver's license, birth certificate, express testimony as to her age, etc., I'd have zero doubt that it was insufficient. Even though I'd think, as I do here, that she's indeed probably 18 or more.
You gotta follow the rules. Even though I'm not happy -- at all -- with the result, I'd be compelled to do the same thing as the majority. The prosecution thought it had to prove X, but it actually had to prove Y, and even though it probably could have established Y with ease, it didn't do so beyond a reasonable doubt. Which means the evidence is insufficient and the defendant entitled to an acquittal.
Even for something as disgusting as this.
P.S. - The mother got a long sentence in prison as well. Just so you know.
