Teen, both a perpetrator and victim of sex offense, presents legal puzzle

Salt Lake Tribune ^ | Dec 06 2006 01:14:42 AM MST | Pamela Manson

[newzjunkey]

Utah Supreme Court justices acknowledged Tuesday that they were struggling to wrap their minds around the concept that a 13-year-old Ogden girl could be both an offender and a victim for the same act - in this case, having consensual sex with her 12-year-old boyfriend.

The girl was put in this odd position because she was found guilty of violating a state law that prohibits sex with someone under age 14. She also was the victim in the case against her boyfriend, who was found guilty of the same violation by engaging in sexual activity with her.

"The only thing that comes close to this is dueling," said Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender.

And Chief Justice Christine Durham wondered if the state Legislature had intended the "peculiar consequence" that a child would have the simultaneous status of a protected person and an alleged perpetrator under the law.

The comments came in oral arguments on a motion asking the high court to overturn the finding of delinquency - the legal term in juvenile court for a conviction - against Z.C., who became pregnant after she and her boyfriend engaged in sex in October 2003.

State authorities filed delinquency petitions in July 2004, alleging that each had committed sexual abuse of a child, a second-degree felony if committed by an adult.

The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated.

Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime. Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor, but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor.

For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex.

A juvenile court judge denied the motion by Z.C., who then admitted to the offense while preserving her right to appeal to a higher court.

The Utah Court of Appeals last December upheld the judge's refusal to dismiss the allegation.

At Tuesday's arguments, Matthew Bates, an assistant Utah attorney general, argued the prosecution of the girl was not unreasonable. He said the statute in question is designed to prevent sex with children who are 13 and younger, even if the other person is in the same age group.

By passing that law, legislators were sending a message, Bates said: Sex with or among children is unacceptable.

Randall Richards, the girl's attorney, argued that prosecuting children under a law meant to protect them is illogical.

[SmoothTalker]

Both kids need to be firmly disciplined by their parents and given counseling .Neither needs to be prosecuted as criminals. Were one 16 and the other 12 then I would agree with charging them but charging two kids the same age is just plain silly.

[TKDietz]

"They're minors. Their records will be purged when they come of age."

That's what people think, but it's not exactly true. In most if not all states juvenile records will be sealed, but not destroyed. If later these kids want to go in the military, or be a stockbroker, or be a lawyer (maybe not in all states), these juvenile records are fair game. I've done all of these jobs, and I've handled tons of juvenile delinquency cases. I remember before taking the Series 7 exam to be a broker having to fill out a form that asked about any and all arrests, whether the cases were "dropped," "thrown out,""expunged," etc. They even used the slang words so people couldn't come back and say they misunderstood the form. At the bottom of the form it said it was a federal offense to omit any of your criminal history or lie about it punishable by something like ten years in prison and a $100,000 fine. They did about the same thing in the Army except they actually interrogate you in person as well. I recall being brought to two different rooms and being questioned by two different people, asking all sorts of questions basically over and over again.

Now, if these kids do lie to the military or whatever about their juvenile records, odds are good no one will ever know because in order to get any records these organizations would have to get a judge to sign an order allowing access to the records. They can't really do that unless they know about the offenses. Those who admit their juvenile transgressions will basically create new records once the old ones are opened up. Those that don't risk getting in a lot of trouble later if they try to get certain secret clearances where government workers will be sent out to talk to neighbors and so on to really check them out before granting the clearance. These kids could potentially get in a lot of trouble if they lie. I actually spent a while as a "recruiter's aid" after my initial training in the Army and the recruiter I worked with routinely suggested to people with juvenile records that they keep all that to themselves when they go down to get processed in. He had quotas to meet.

There are probably all sorts of other employers that are allowed to ask about people's troubles with the law as juveniles and that might be able to get access to juvenile records. I only mentioned those I'm sure about. Things these young people do, bad decisions they make, certainly can haunt them the rest of their lives. I always try to set them straight on that when I represent them.

[rednesss]

This is so ludicrous it would be funny if it weren't so serious for the two kids involved. I guess I should be labeled a sex offender for life for all the times I played doctor in middle school when I was 13, or all those times I "rubbed one out" when I was a kid, I was really committing a sex offense against myself???

Common sense and public outrage should be brought back into vogue along with tarring and feathering and these stupid jackass prosecuters should be run out of office. Mad-dog prosecutors trying to make a name for themselves will be the end to our society.

I feel like the British doctor at the hospital in Damascus in Lawrence of Arabia who goes around yelling "outrageous".

[Lorianne]

This is silly. The point of consent laws it to protect minors from adults, not to prosecute minors for sex with each other. That issue is for parents to deal with. (This is why there are like-age exceptions).

All this shows is that Utah's laws are very poorly written.

[wildbill]

For most of recorded (and not recorded) history, humans have had sex whenever their bodies matured enough to function.

The modern version of Western cultural morality (no sex after puberty until the arbitrary age of 18)was only adopted about a century ago.

What we consider children today were often married in past centuries.

While we can easily legislate morality by establishing laws against adults (pick your age: 17,18,19,20,21,etc.) having sex with minors (pick your age: 21,19,18,17,16,etc)the problems inherent in legislating when minors can have consensual sex with minors are highlighted by this case.