PORTLAND — A judge today dismissed charges against a Somali refugee accused of sexual assault, saying that the state has not proved that he was an adult at the time of the crime.
Mohammed Mukhtar was charged with gross sexual assault, burglary and other offenses for an attack on a woman in a Parkside apartment building in May.
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His lawyer, Jonathan Berry, argued that Mukhtar was born on Oct. 25, 1994, and is therefore 17 years old.
Berry said Mukhtar, along with many other refugees, was assigned a Jan. 1 birth date when their cases were processed by the U.S. government. The prosecutor, Assistant District Attorney Deborah Chmielewski, had argued that Mukhtar and his family had accepted Jan.1 date as his legal birthday and noted that date appeared on various records.
Prosecutors have not yet decided how to proceed with the case, but there is a possibility of re-filing charges in the juvenile court system, said Tamara Getchell, a spokeswoman for the Cumberland County District Attorney’s Office.
Prosecutors can also sometimes try a juvenile as an adult for serious crimes, but the process requires a hearing and approval from a judge.
On Monday, Superior Court Justice Thomas Warren wrote that Mukhtar’s birthday is more likely to be October than Jan. 1. Mukhtar’s mother and a family friend testified at a hearing last week that Mukhtar was born Oct. 25.
Warren found that Mukhtar had accepted Jan. 1 as his birth date for official purposes and noted that he gave that date and his age as 18 when interviewed by a police detective. But the judge wrote that
the juvenile code sets a standard based on actual chronological age when the age is different from those on official documents.
Berry said the fact that governments or non-governmental organizations create a legal fiction out of bureaucratic convenience called into question the reliability of Mukhtar’s birth date.
Mukhtar is accused of attacking a 50-year-old woman in a High Street apartment. The woman told police she sleeps very soundly because of medication and woke to find a stranger assaulting her.
Mukhtar was arrested after police found a fingerprint on a condom wrapper. He is being held at the Cumberland County Jail.
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