Someone Knows The Answer to This Question About the Koso Statutory Rape Prosecution

Law professors tend to specialize. As a result, there are lots of legal things I don’t know much about, and I try not to write about them. And there are lots of legal things I think I know something about, but I usually feel I don’t know them well enough to opine publicly. And on those few subjects I think I know best, I tend to want to write fairly long and detailed articles, not blog posts. As a consequence, I don’t tend to post legal (as opposed to political) commentary on this blog. The major exception so far has been the torture issue, which so offended me that I studied up on it to the point where I felt able to write about it, even though I don’t currently have plans to publish on it in law journals.

But here’s an exception to my rule, this time on a subject I know I don’t know well: family law (and its criminal law counterpart). It’s just that I’m curious about it.

The New York Times ran a story yesterday about a statutory rape charge being filed in Nebraska against one Matthew Koso, who is part of a couple (he: age 22, she: age 14) legally married in Kansas. The article doesn’t mention the constitutional implications at all, nor it seems does much of the blog commentary, and I’d like to know why. (Just keep in mind as you read this that I’m prepared to be told that any of the following assertions is wrong.)

I would have thought that it was settled that under the privacy jurisprudence in the Griswold line of cases (striking down a state rule banning sales of contraceptives to married persons) no state could criminalize sex between consenting married adults, even due to their ages. I presume therefore that Nebraska law doesn’t recognize the validity of the Kansas marriage, but I would have thought that this failure to recognize would violate the full faith and credit clause of the constitution:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

In the so-called “Defense of Marriage Act” Congress purported to exercise its authority under the Full Faith and Credit Clause…to allow states to deny any credit to out-of-state marriages between same-sex couples. But–even assuming that this statute conforms to the Full Faith and Credit Clause (I’m dubious)–it’s clear that the DOMA doesn’t apply here. So what is Nebraska’s authority for denying the validity of the Kansas marriage? Is it ‘public policy’? Can that suffice to void a constitutionally protected relationship? Or is it some idea that minors don’t have the same constitutional right to marry as adults, and this trumps the adult’s right not to be prosecuted for marital sex?

I’m presume there’s some good reason why the couple’s defenders, including their lawyer, are not making these constitutional arguments. Alternately, they might be making them but it’s not getting reported. Or, perhaps the prosecution iis to be based on a res ipsa loquitor claim regarding pre-marital sex?

Like I said, family law is not my field, and the facts are not utterly clear here, but I bet someone reading this either knows the answer or knows where it can be found.

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18 Responses to Someone Knows The Answer to This Question About the Koso Statutory Rape Prosecution

  1. JO'N says:

    I too wondered why the full faith and credit clause didn’t apply. The only thing I can think of (and I want to be careful to state that I’m not a lawyer, I don’t even play one on TV, and I would appreciate feedback on this) is that Nebraska’s statutory rape law makes no provision for marriage. That is, Nebraska recognizes the marriage, but marriage doesn’t matter to the application of the applicable law. In a sense, it would be parallel to a state prosecuting a husband for the rape of his wife, even though the state where they were married doesn’t recognize the legal possibility of rape within a married couple (if there are such states).

  2. michael says:

    I think this sort of facial neutrality wouln’t matter. I think under Griswold it would still be unconstitutional (subject to the issue of whether Griswold applies to minors).

  3. arthur stock says:

    My understandiing is that the statutory rape leading to pregnancy occurred before marriage, so the only legal question is whether a subsequent marriage is a defense to rape.

  4. Patrick (G) says:

    If their daughter, born a few days ago, was a full term pregnancy, and they just go married in May, then she was conceived prior to their marriage.

  5. Patrick (G) says:

    If their daughter, born a few days ago, was a full term pregnancy, and they just got married in May, then she was conceived prior to their marriage.

  6. Richard Campbell says:

    As I understood it, even before DOMA states refused to give full faith and credit to marriages that were against their public policy. Mostly interracial marriages in the South, before Loving, I believe, but also marriages that were not incestuous in the original state but were in the new state (first cousins, usually).

  7. jim says:

    I’m not a lawyer, so this may be off the wall, but . . ..

    If the prosecutor is relying on premarital relations, he has a problem: there is a baby, which is clear evidence that the 14 year old had sex with someone, but no proof that Koso is the father (yes, common sense says he is, but common sense is not evidence: the res that ipsa loquitor is the baby itself, not Koso’s behaviour towards it). If he tries to call the 14 year old to testify, she invokes marital privilege. So for the prosecution to bridge this gap and force her to testify, it’s going to have to argue that the marriage is not valid, even though it’s not relying on sex within the marriage as the basis for the statutory rape charge.

  8. arthur stock says:

    Jim–since a blood test will prove patrimony of a baby, there is no need to invade marital privilege to successfully prosecute.

  9. cowboy says:

    Besides which, first we’d have to find out whether the marital privilege applies (in many states it doesn’t–it’s considered antiquated).

  10. Adam says:

    I think Richard is right. It has been a few years since my Family Law class, but I seem to remember that most states will not recognize marriages that are against their public policy. If there is a state statute agaisnt whatever conduct may be involved in the marriage (first cousins, same sex, too young), then there is a presumption that the conduct is against public pollicy.

  11. J i O says:

    It’s my understanding that the girl was already pregnant when the marriage occured.

    There’s also his history. From a story in the Omaha World Herald:

    FALLS CITY, Neb. – Matthew Koso, the 22-year-old local man who married his pregnant 14-year-old girlfriend in May, was involved with at least three other underage girls before her.

    Relatives of two girls told The World-Herald of the relationships.

    In one case, Koso’s relationship with an 11-year-old girl came to an abrupt halt when her father discovered the two had been going out. Koso was 19 at the time.

    “I nipped it in the bud,” the father said.

    Another girl’s uncle said he intervened when he saw his niece, then 12 or 13, riding in Koso’s van. He told Koso to stay away from the girl.

    In the third case, Andrew Timothy, a cousin of the girl whom Koso married, said he once saw the father of a preteen girl pull Koso out of the city pool, punch him and warn him to stay away from his daughter.

    A half-dozen other people who know Koso or his bride, including some of her relatives, said Koso’s interest in young teens and preteens was widely known.

    “He’s been dating little girls for a long time,” said Patty Smith, an aunt of the girl Koso married.

    The girl’s mother cited his past behavior when she sought a protection order to keep him away from her daughter.

    “He has a history of the same, similar with other young girls. And he needs to be stopped here and now,” the mother wrote in her affidavit.

    But Koso’s attorney, Willis Yoesel of Falls City, said he wasn’t aware of any previous relationships Koso had with underage girls.

    “I don’t think he had any history of dating anybody,” Yoesel said. “His experience of any kind socially is very limited.”

    Yoesel said he would not allow Koso to give an interview.

    [more…] (use for ID and password)

  12. Jason says:

    Richard is right–the short answer is that Full Faith and Credit doesn’t historically apply to marriage. It does apply to divorce, since that’s a court judgment (the two leading Supreme Court opinions are both captioned Williams v. North Carolina and arise from the same case). However, marriages are recognized under a doctrine of judicial comity, under which a marriage may be disregarded if it violates a state’s strong public policy. This is at the root of many current debates about same-sex marriage and covenant marriage (the so-called “marriage on steroids” that has been statutorily created in a few states). It’s also the basis for one of the many arguments that part of the federal Defense of Marriage Act is unconstitutional.

  13. Tammy says:

    What about child protection laws? Could the girl’s mother not be prosecuted for child endangerment? I think everyone is pointing fingers at the wrong culprit!!!

  14. Mike says:

    Actually, mom had a restraining order against him. By even seeing her, he was violating a court-order.

  15. Millie Dogue says:

    You missed one point (when you wrote “no state could criminalize sex between consenting married adults”) – the arrest came the day after the shotgun wedding – I’m no detective but I think they were having sex BEFORE they got married. We’re not even up to the full faith and credit issue – the crime was committed before they were married.

    Isn’t he also guilty of violating the restraining order that was supposed to keep them apart?

    Do we intend to make marriage a defense against statutory rape?? Won’t that just serve all the pedophiles in the world?? Anecdotal evidence suggests Matt Koso is a serial pedophile to boot…

    This is a sad case with no happy ending in sight. You have two chronologically, emotionally, and intellectually immature individuals trying to raise a baby. God help them.

    I was stunned by the young mother’s comment, when asked what she would do if her daughter, in 12 years, was dating a 20 year old man – she said “I’d sent her to her room”! With such brilliant parenting skills, she may be a grandmother before she’s 30.

  16. shawn says:

    What kind of a world do we live in when we allow a pedophile to go on prime time television and state his defense? It’s one thing to have mindless entertainment, but now a depiction of a happily married couple being persecuted by a mean and unfair law? Now that’s disgusting. What’s next, Ted Bundy? That’ll bring about some emotion in the American public. News team, ASSEMBLE!

    If anyone knows of a way to help out the prosecution, please post it.

  17. Jenn says:

    Although this whole case seems to be disgusting we must take into consderation not only their ages but also their emotional development. My sister and her now husband met when she was 14 and he was 20. They had their FIRST child when she was 15 their second three years later and in April they welcomed their third. They have been together for over eight years and are incredibly happy. Their children want for nothing and they are very successful. I am certainly not saying the situations are identical but I am saying we need to give this family a chance. The only real person that will be negitivly affected is going to be the baby. Age doesn’t always determin your mental and emotional maturity. When you consider they willingly married isn’t it obvious they are in love and both knew what they were getting into!!!!!!

  18. D.J. says:

    “now a depiction of a happily married couple being persecuted by a mean and unfair law?”

    That’s because they are a happily married couple, and they are being persecuted by a hack politician on a moral crusade who wants to hurt those he considers sexual deviants more than he wants to protect the “victim” or her child.

    The local DA declined to prosecute, understanding that to do so would make things worse, not better. Too bad the AG doesn’t have that degree of common sense.

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