SLIP OPINIONS
 
OF THE
 
TRIAL DIVISION
 
OF THE
 
HIGH COURT OF AMERICAN SAMOA
 
(2014)

AMERICAN SAMOA GOVERNMENT,
Plaintiff,
 
v.
 
FAIVA HARI,
Defendant.
 
High Court of American Samoa
Trial Division
 
CR No. 113-13
 
May 14, 2014
  
[1] The domestic relations statute and the criminal justice act conflict in that the former allows any girl who has reached the age of 14 years to get legally married provided that she has the consent of her parents and the latter states that it is a crime for any man to have sexual intercourse with a girl 16 years and under. 
 
[2] The proscribed or forbidden conduct constituting rape, which is a sexual intercourse with a girl 16 or under, is exactly the same conduct that constitutes sexual assault; however, the punishment for rape and sexual assault are 15 years and 7 years respectively. 
 
[3] Whether one is charged with rape or sexual assault is a matter left entirely up to the prosecutor‘s discretion. 
 
[4] Our criminal law statutes specifically recognize, for purposes of all sexual offenses, that a co-habitable couple living together as man and wife are to be treated as if they are married. 
 
[5] In a marital situation where children are involved, the question naturally arises as to whether the desired outcome should simply be punitive and deterrent measures against men who have sex with 16 year olds. However, under a scenario of a family unit with children, the concurrent outcome with deterrence is the effect of breaking up of a marital unit and depriving the mother and child of the economic benefit of spousal and child support while the husband and father is locked away in jail for a period of time. 
 
Before KRUSE, Chief Justice; FA‘AMAUSILI, Associate Judge; and MUASAU, Associate Judge 
 
Counsel: For Plaintiff, Tony F. Graf Jr., Assistant Attorney General 
 For Defendant, M. Douglas Fiaui, Public Defender 
 
REPORTER‘S TRANSCRIPT OF JURY TRIAL PROCEEDING
 
[**2**] THE COURT: Good morning, Members of the Jury. Our apologies for telling you yesterday that we'll reconvene at 9 o'clock but we're reconvening at 35 minutes late, from your point of view. But after the recess yesterday, the lawyers were involved in certain negotiations regarding this proceeding and presenting a stipulation to the court for approval. 
 
[1] Our domestic relations statute allows, on the one hand, any girl who has reached the age of 14 years to get legally married provided that she has the consent of her parents. On the other hand, our criminal justice act states that it is a crime for any man to have sexual intercourse with a girl 16 years and under. 
 
In other words, our criminal law statutes seem to be saying that if you're the husband of a 14-year old girl to whom you are legally married, you cannot consensually consummate your marriage without running the risk of going to jail. Jail could consist of a period of up to 15 years in the case of being charged with statutory rape or up to seven years in the case of being charged with sexual assault, as in the [**3**] case that is before us. 
 
[2-4] Incidentally, the prescribe or forbidden conduct constituting rape which is a sexual intercourse with a girl 16 or under is exactly the same conduct constituting sexual assault. The difference between rape and sexual assault is the difference between 15 years and 7 years. Whether one is charged with rape or sexual assault is a matter left entirely up to the prosecutor's discretion. To add confusion to this seeming anomaly, our criminal law statutes specifically recognizes, for purposes of all sexual offenses, that a co-habitable couple living together as man and wife is to be treated as if they are married. 
 
Now, in the interim while during the recess, the lawyers have jointly requested they've been working on this joint request and the court has granted a deferral or continuance of the proceedings with the defendant opting to waive his speedy trial right and is asking for a bench trial as oppose to a continuing jury trial. The lawyers have asked for this deferral continuance to allow them to review what sort of options or social outcomes would best serve the interest of justice, given the extent of the testimony thus far. 
 
[5] In a marital situation where children are [**4**] involved, the question naturally arises as to whether the desired outcome should simply be punitive and deterrent measures against men who have sex with 16 year olds. However, under a scenario of a family unit with children, the concurrent outcome with deterrence is the effect of breaking up of a marital unit and depriving the mother and child of the economic benefit of spousal and child support while the husband and father is locked away in jail for a period of time. 
 
Alright. Members of the Jury, given the stipulation and given that the court has granted this, this effectively means any future continuance of this case will no longer be in front of a jury, but in front of a panel of judges which means, Members of the Jury, that your service have effectively come to an end at this time. The court, nonetheless, would like to extend its appreciation to you for attending to its summons and indeed participating in the jury process. 
 
As I mentioned to your fellow venire or panel members that were summoned with you, without the civic cooperation of citizens like yourselves, our jury system simply wouldn't work. And that system of justice is that, a person accused of a crime in American Samoa and indeed in the rest of the United States, you are tried not by the government, but a panel of your own [**5**] peers. 
 
At this time, the court thanks you again. You are discharged. You may take your notes if you so want. Thank you. 
 
(Conclusion of proceedings) 
 
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