ST. LOUIS • The wheels of justice started grinding against a distant culture the day the soft-spoken seventh-grader walked into a Planned Parenthood clinic here with a swollen belly, seeking an abortion.
The nonprofit clinic called social services, which in turn called St. Louis police. Investigators presented facts to prosecutors, who in February 2011 filed a first-degree statutory rape charge against Asannay Marbati, the 20-something father-to-be.
By that time, the girl — age 12 according to the charges — had decided to proceed with the pregnancy, and Marbati had moved next door to her family on Gasconade Street.
The girl and her mother told detectives that the one-time sexual encounter that impregnated her was acceptable in Eritrea, the war-torn country from which they fled. Marbati, also from Eritrea, told them the same.
But that doesn't matter under Missouri law.
Detectives had to explain repeatedly to Marbati, through an interpreter, that regardless of what is acceptable in Eritrea, having sex with a minor is a major crime here — punishable by five years to life in prison.
If the law was just that simple, the circumstances of this case were not.
The girl was 12 only because of the best guess of U.S. Immigration and Customs Enforcement officials when she arrived in 2007. In the village where she was born, it so happens, they do not follow a calendar year nor track ages.
Marbati's attorney, John Rogers, seized on that part of the culture to build what might have seemed like a long-shot defense: How can the state prove the girl was under the age of consent if nobody really knows how old she is?
For that matter, nobody knew for sure if Marbati was 22, the age on his Social Security card. If he was under 21, and she was 14 or older, it would have been considered a lesser crime.
When the case went to a bench trial on March 26, St. Louis Circuit Judge Angela Turner-Quigless accepted Rogers' point about the girl's arbitrary age, dismissing the charge. Circuit Attorney Jennifer Joyce filed a notice of appeal. She issued a statement saying, " ... we believe a serious crime against a child has occurred."
CHILDREN WITHOUT AGES
Marbati's birthday, according to all his American records, is Jan. 1. It is the girl's birthday, too, and her mother's and her brother's. Countless immigrants, in fact, carry that birth date because of the semi-random nature of the way in which they were assigned.
Suzanne LeLaurin, of the International Institute of St. Louis, said batches of Jan. 1 birthdays are seen most often with refugee populations, particularly those fleeing rural areas in developing countries such as Eritrea.
"In many countries around the world there is no such thing as birth certificates, there is no recognition of birthdays," explained LeLaurin, a senior vice president at the institute, which serves immigrants here.
With no documentation of the birth or historical event to peg it to, assigning a birth date "is kind of a guess," she said.
The girl in this case was born in a small, remote village where there were no doctors or midwives, according to Marbati's attorney. The birth was not documented.
Rogers said he was able to get the mother to acknowledge, in cross-examination, that when they came to the U.S., the girl's age was assigned without family input. Marbati's assigned age, he said, was equally uncertain.
"I'm unsure why the Circuit Attorney's office elected to proceed in the first place," he said in an interview. "There was no credible information to establish the age of the complaining witness or of my client."
To convict Marbati of first-degree statutory rape, prosecutors needed to show the girl was under age 14, regardless of Marbati's age. Second-degree statutory rape charges would apply if she was under age 17 and he was 21 or older.
Assistant Circuit Attorney Natalie Warner, who handled the case, said the law does not require the prosecution to prove the victim's exact age — just that she was under the age of consent. At trial, Warner pointed to certain benchmarks she believed helped establish that.
The prosecutor pointed out that when the girl and her family crossed from Eritrea into Ethiopia, where they would spend more than seven years in a refugee camp, the girl was old enough to walk but young enough that she had to be carried for part of the two-day journey. Her younger brother had to be carried most of the way.
Warner showed the judge a picture of the girl from fourth grade, the year her family moved to St. Louis and she was assigned the Jan. 1, 1998, birth date. She pointed to the girl's siblings, and the ages they had been assigned, for comparison.
"I believe they got it right," Warner said.
CLASH OF CULTURES
Where the girl and her family now live on South Spring Street, Marbati is noticeably absent. He spent six months behind bars awaiting trial, and after being released on bond was forbidden from contacting the girl or their 10-month-old daughter.
The girl and her mother agreed to speak with a reporter last week on condition that their names not be used. They spoke through an interpreter in their language of Kunama.
The girl looks the part of a typical middle-schooler. On this day, she wore jeans and a polo shirt and dangly gold earrings. When asked about Marbati, she got quiet and giggled, looking down at her purple and black high-tops. Her child, who has just learned to crawl, scooted about the living room floor in a hoodie decorated with translucent butterflies. Both the girl and her mother took clear joy in watching her.
The mother brought her six children to America for a better life than they had in their village of Fode, near Ethiopia, which has been locked for three decades in a border war with Eritrea. They were among the second wave of roughly 250 Eritrean immigrants who have settled in St. Louis.
The mother said she was at first shocked and angry to learn her daughter was pregnant. She worried it would interfere with school — a new liberty they have been afforded here. But then, she said, she came to a realization: "What can I do? She's my daughter. I have to love my daughter."
The mother said that she never wanted to see Marbati charged and that she struggled many times to explain the cultural differences to authorities. Back home, she said, a young pregnancy is not popular, but it doesn't end in jail for the father. Village leaders would decide how to handle a young girl's pregnancy, she said, usually requiring the couple to live for several years with their respective families, then wed.
Still, she said, she understands that there are different rules here.
The girl said little, often deferring to her mother. She confirmed, however, that her sexual encounter with Marbati was consensual and that she didn't want him charged.
When detectives questioned Marbati on Feb. 8, 2011, he said he did not know his actual age, despite a Social Security card and drivers permit showing a birth date of Jan. 1, 1988.
Marbati also told them it was acceptable to have sex with a girl in Eritrea once she was developed. He said he was unaware of American age-of-consent laws.
He declined, through his attorney, to speak to a reporter for this article.
A LEGAL DIVIDE
LeLaurin, of the International Institute, acknowledged that it may sound odd to anyone who hasn't been exposed to cultures lacking those distinctions.
"You're looking at this situation from a lens that is very culture-bound," she said. "We have laws, we have birth certificates, we have age of consent."
She explained, "It's not uncommon for refugees to struggle with adapting to a set of laws and cultural norms and expectations that are very different to what they are used to."
The institute has programs to help immigrants assimilate, LeLaurin said, but it can be a daunting task when cultural differences are large. Many families struggle.
LeLaurin said she cannot think of another situation like Marbati's. But, she said, the institute has been involved in cases of neglect, for example, in which a family was unaware of the U.S. requirement to send a child to school.
It is "not common" for cultural differences to lead to criminal charges, LeLaurin said, and "when it does happen it's very visible and heartbreaking."
Peter Joy, a Washington University law professor, said that while prosecutors exercise discretion in bringing charges on a wide variety of cases, they often feel compelled to take a hard line on sex crimes involving children.
He said that is, in part, what prompted a rash of so-called "Romeo and Juliet" laws in a number of states in recent years. Such laws, which in many states were opposed by prosecutors, bar statutory rape charges for sex between teens close in age, even if one is below the age of consent.
Missouri has graduated offenses keyed by ages; Illinois has no such provision.
Joy said the cultural issue alone was not much of a defense for Marbati in a country that has long since drawn the line against a number of practices — for example, certain kinds of drug use or body mutilation — which are acceptable elsewhere.
But the question over the dates of birth "is very unusual," he said.
DECISION TO PROSECUTE
Rogers, the defense attorney, has criticized the circuit attorney's office for pressing the case despite the cultural differences, age ambiguities and resistance from the girl's family.
He emphasized that a conviction would have left Marbati subject to deportation and unable to help the girl, now in eighth grade, raise their daughter.
The fact that prosecutors are appealing is "puzzling," Rogers said, because they did not indicate they would do so when the judge delivered her decision.
"I question whether the decision to appeal was motivated by the media's inquiry into this case," he said, adding he planned to object to their challenge.
The girl's mother was reluctant to comment on the circuit court judge's decision, saying Warner had not yet informed her of it. She said she opposed an appeal.
"I've been telling them a hundred times I don't want to see any charges," she said.
Warner, however, denied that the girl's family ever expressed their objections.
Regardless, the prosecutor said, it's not uncommon for families to be reluctant in cases that involve close friends.
"It's important that the prosecutor's office step forward to protect all children's rights, no matter if they're coming from a family that thinks it's OK that they be taken advantage of," Warner said. "She deserved to have a childhood ... not to be an eighth-grader with a baby."