PORTLAND — A judge Monday dismissed charges against a Somali refugee accused of sexual assault, finding that the state did not establish that he was an adult at the time of the crime.

Mohammed Mukhtar was charged with felony gross sexual assault, burglary and other offenses in an attack on a woman in a Parkside apartment building in May. He was charged as an adult based on a Jan. 1, 1994, birth date that appeared on numerous records, including some that Mukhtar and his mother had signed.

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But Jonathan Berry, Mukhtar’s lawyer, argued that Mukhtar was actually born on Oct. 25, 1994, making him 17 when the crime occurred, and therefore under the jurisdiction of the juvenile court system. Berry described the Jan. 1 birth date as a legal fiction imposed on many refugees when they are processed by the U.S. government.

In his order, Superior Court Justice Thomas Warren wrote that there is no way to get an authoritative date of birth from Somalian authorities. Mukhtar and his family fled their home in Mogadishu abruptly in 2005 because of the civil war and Warren noted that it was unlikely that birth certificates were even being issued when Mukhtar was born.

At a hearing last week, Mukhtar’s mother, Jamila Sangab, testified through an interpreter that she and her seven children were all given Jan. 1 birth dates in India in 2008 as they prepared to travel to the United States. She testified that Mukhtar was born on Oct. 25 — her wedding anniversary. A family friend, Abdi Ahmed Ismais, testified that Mukhtar and his daughter shared that birthday.

“It is unlikely that, of all the Somali refugees who have been assigned January 1 birth dates, Mukhtar happens to have been the one who was actually born on January 1,” Warren wrote.

Warren said Mukhtar has accepted Jan. 1 as his birth date for official purposes. He noted that Mukhtar told police he was 18 and that his birth date was Jan. 1, but that he may have done so because that is the date on his refugee papers.

Warren said the juvenile code sets a standard based on actual age when that differs from what is listed on official documents. He wrote that it would have been difficult for someone who does not speak English to correct the discrepancy, and unlikely that a refugee would question dates on refugee documents.

Prosecutors have not decided how to proceed with Mukhtar’s case, but it could be pursued through the juvenile court system, said Tamara Getchell, a spokeswoman for the Cumberland County District Attorney’s Office.

Prosecutors can attempt to have juveniles tried as adults in cases of serious crimes, but that is subject to a hearing and approval from a judge. Mukhtar faced up to 20 years in prison on the adult charges, but could only be held until his 21st birthday as a juvenile.

Mukhtar is accused of attacking a 50-year-old woman in a High Street apartment. The woman told police she sleeps soundly because of medication and woke to find a stranger assaulting her. Mukhtar was arrested after police found a fingerprint on a condom wrapper.

Staff Writer Ann S. Kim can be contacted at 791-6383 or at: [email protected]

Twitter: AnnKimPPH

 

Correction: This story was edited at 10:20 a.m. to correct the year that Mukhtar’s family left Somalia.