This appeal requires us to examine K.S.A. 21-3522(a)(3), sometimes referred to as the “Romeo and Juliet” law. Here, 12-year-old E.R. was adjudicated a juvenile offender for sexually fondling a 14-year-old girl who was a willing participant. E.R. argued to the district court without success that the charge should be dismissed and he shоuld not be adjudicated a juvenile offender because he is younger than the girl involved in this illicit liaison. This appeal follows the district court adjudicаting E.R. to be a juvenile offender on this charge.
K.S.A. 21-3522(a) provides:
“Unlawful voluntary sеxual relations is engaging in voluntary. (1) Sexual intercourse; (2) sodomy; or (3) lewd fondling оr touching with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and the child and the offеnder are the only parties involved and are members of the opposite sex.” (Emphasis added.)
The intent of the legislature in enacting K.S.A. 21-3522(a) cоntrols. See State v. Paul,
As we understand it, thе State argues that a 12-year-old offender is less than 4 years older than a 14-year-old victim because a person 4 years older than a 14-yeаr-old is age 18, and the age of a 12-year-old is less than the age of an 18-year-old. We suspect that the average reader will have to reаd the foregoing sentence more than once to figure out the State’s theory. We did. We are confident a mathematician could easily express the State’s theory in a simple
All of the State’s interesting argumеnts for why we should apply its tortured construction and all of E.R.’s equally interesting policy considerations, which he claims support a contraiy view, are predicated on the existence of an ambiguity in the statute. We never apply the familiar rules of construction which the State turns to if the stаtute is clear and unambiguous on its face. In re K.M.H.,
Wе note in passing the general rule that if the statute were ambiguous, becаuse it is a criminal statute we would ordinarily construe it in a fashion favoring the аccused, not the State. See State v. Paul,
Accordingly, we conclude that the district court erred in refusing to dismiss this charge and in adjudicating E.R. to be a juvenile offender for violating K.S.A. 21-3522(a) when he was younger, rather than older, than his female participant.
This renders E.R.’s remaining claims moot.
Reversed.
