Friday, September 16, 2011

Criminal Case Depends on Age of Adoptee

Interesting (at least to me, a criminal law attorney!) case where age matters for a Sierra Leone adoptee charged with a crime -- if he is 17, he's less than two years older than the victim of statutory rape and not guilty; if he's 19, he's guilty:
Prosecutors say they have charged a 19-year-old man with a pair of felonies for having sex with his underage ex-girlfriend and taking nude photos of another teenage girl he was dating.

But Samuel Josiah Benda says he's actually 17.

Benda, who was adopted from Sierra Leone without an official birth certificate, shouldn't face an adult sex charge because he is not more than two years older than the alleged victim, his defense attorney argued this week in Dakota County District Court.

* * *

In Benda's case, Dakota County District Judge Robert King this week began considering the question of Benda's age after his defense presented a copy of his birth certificate from Sierra Leone, stating he is 17. In court Wednesday, King questioned the document's authenticity and suggested the defense find his original birth certificate, his parents said.

But finding original records from war-torn Sierra Leone is difficult, they said.

"I don't know if such a document exists," Martin said.

Benda, who was adopted in 2005, arrived in Minnesota four months after his adoption because the U.S. State Department needed to investigate the adoption before issuing him a visa. At the time, a spokesperson from U.S. Citizenship and Immigration Services said the process was to ensure there was no fraud or child trafficking in the adoption.

Benda's adoption documents said he was 11 years old, which would make him 17 today, Martin said. Records from Social Security, his immunizations and his Minnesota citizenship show that age. However, Benda later obtained other records saying he's 19.

A 2005 Pioneer Press report about the adoption reported that Benda was 11.

The mix-up happened shortly after the adoption when Benda told his parents he was 13, not 11. Martin now believes Benda, who suffers from multiple behavioral disorders, said he was older because he was being bullied in school and wanted to advance grade levels.

"We believed him," Martin said.

A doctor evaluated Benda's bone density, pubertal development and height to estimate his age at the time, Martin said. The doctor stated Benda was between 13 and 14 years old.

However, the defense argued that bone-density tests are not always accurate.


Sharon said...

So many children in the developing world are born without birth certificates...and in Africa, or at least in East Africa where my kids are from, no one celebrates birthdays either. It's hard for us in modern America to grasp this...but things were the same way here in rural areas 100 years ago. My grandmother wasn't quite sure whether she was born in 1908 or 1910, and her parents weren't sure either.

Anonymous said...

@Sharon: "It's hard for us in modern America to grasp this...but things were the same way here in rural areas 100 years ago."

So many children in the U.S. are issued falsified birth certificates every single day. It is an identity erasure during the adoption process and it's barbaric.

Linda said...

But it is NOT 1908 or 1910, Sharon, it is 2011. An original, unaltered birth certificate is a NECESSITY for many adoptees. Not just in criminal cases such as this one, but for government issued identification, such as passports.

I am an adoptee who cannot obtain a passport. I am also very much into accurate genealogy. I cannot be a member in certain "lineage societies" because of this state sanctioned discrimination, nor can my children or any of their descendants. Its time for this fraud to stop.