New Decision From Court of Appeals Likely Headed to Supreme Court

For years there has been a gap in Indiana law, primarily related to child sex offenses. It is not uncommon in these cases for children not to disclose the abuse until years, and sometimes decades, later. If the abuser was an adult at the time of the abuse, liberal statutes of limitation have allowed the abuser to be tried even if the disclosure was delayed.

But the same was not true if the abuser was a child. Subject to some exceptions, children who commit delinquent acts (acts that would be crimes if they were committed by adults) are to be handled in the juvenile justice system. Yet the juvenile justice system only has jurisdiction (i.e., power or authority) over the children until they reach the age of 21. Also subject to some exceptions, people who commit acts that would be crimes when they were under the age of 18 cannot be tried in adult court because adult criminal courts had no jurisdiction.

This created a jurisdictional gap. What happens if a child molested another child, but the victim does not disclose the molest until years later, after the molester has reached the age of 21 or older?

This was the basic fact pattern in D.P. v. State, 151 N.E.3d 1210 (Ind. 2020). There, when confronted with the question asked above, the Indiana Supreme Court answered: nothing, due to the jurisdictional gap in the law.

Thus, in 2023 the Indiana General Assembly amended the law to close the jurisdictional gap. The fix purportedly allowed the State to file cases such as D.P.’s directly in adult court. If a person is 21 years of age or older and committed a delinquent act as a child that would have exposed him to being waived (i.e., transferred) from the juvenile court into adult court had the case been filed before the child turned 21, the amended law now allows the prosecutor to file the case directly in adult court.

The problems with the fix are too numerous to discuss here. Nevertheless, one obvious issue is whether the fix can be applied to acts that occurred before the amended law became effective.

Brown v. State, an opinion published last week by the Court of Appeals, is the first case to answer that question. Before the change in law, the State alleged Brown was a delinquent child for committing an act several years earlier that would be child molesting if committed by an adult. Brown would have been a teenager at the time of the act.

The State asked for Brown to be waived into adult court, and a jury eventually found him guilty of child molesting. Brown’s case fell within the jurisdictional gap in the law that existed at that time.

On appeal, Brown argued neither the juvenile court nor the adult court had jurisdiction. The Court of Appeals agreed. But the State claimed that the change in law designed to close the gap should apply retroactively to Brown’s case because the new law had taken effect while Brown’s appeal was still pending.

The Court of Appeals held that, because the effect of the change in law was to create criminal liability for people like Brown, where before the change in law there would have been none, retroactive application of the law would violate the Ex Post Facto Clause of the U.S. Constitution.

The Court’s opinion in Brown was published and, consequently, is binding on trial courts. Given the issue presented and the fact that this case is another chapter of the jurisdictional gap story, there is a good chance the Indiana Supreme Court will agree to take the case for review. So this issue is certainly not settled.

Nonetheless, practitioners should be aware that if a client turned 21 years of age before July 1, 2023, when the amended statute took effect, and the client is being charged for acts allegedly committed while the client was under the age of 18, Brown may provide relief.