Juvenile Sex Offenders Class 24 CASE OF THE

Juvenile Sex Offenders Class 24

CASE OF THE DAY Girl, 15, became pregnant consensually with boyfriend, also 15, sought prenatal consultation at local clinic � Under state’s mandatory child abuse reporting law, her name was turned over to local CPS � She and boyfriend both charged with sexual assault and prosecuted in juvenile court for having sex with minor � Wisconsin Statutes § 948. 02 � • Under the state’s child abuse statutes, it is a Class C felony for anyone to engage in sexual activity with someone younger than 16. It applies to consensual sex, even between teens of the same age. • Between ages of 16 and 18, it is a misdemeanor Typical sentence, if found guilty in juvenile court, is 6 months of court supervision with conditions: curfew, school and counseling attendance, mandatory separation from sexual partners � Prosecutors claim that parents push for strong court intervention as a mechanism to control their children �

Criticisms and Limitations? � Do such laws protect children from adult sexual predators? � Some states require registration, equating consensual teen sex with adult pedophile or rapist • Wisconsin allows judges to waive registration requirement for adolescents who are convicted of having non-forcible sex with a minor who is no more than four years younger or older than the offender (but not in the child abuse law!) • Most states set age difference at three years (ABA Center on Children and Law) � What is the efficacy of laws to deter consensual sex among teenagers? � Are there developmentally-specific and appropriate alternatives to legal regulation?

Adolescent Development �Sexual, cognitive, emotional development • At what ages? �Developmental status of each person (minor or not) in consensual sexual act �What developmental capacities apply? • Risk taking • Emotional regulation • Maturity of judgment �What is “Consent”?

Four Issues � Definitions • Sex Offenders and the Conundrum of Adolescence �Sex offending versus sexual activity � Determinism • Assumptions in Law of Inevitability and Stability of Sex Offending � Legal Reactions • Punishment • Beyond Punishment �Overbreadth – Hendricks and Crane • Consent? Romeo & Juliet exceptions to rape or chlid abuse prosecution � Imagining Alternatives • Legal and Social Policy

Behavioral Considerations in Defining Sex Offenders � “Age appropriateness” considerations � Heuristic categories of adolescent sexual behavior • • Non-contact sexual behaviors Experimentation Coercion Violence � Concurrent explanations? • Co-morbidity of other mental health conditions • Behavioral co-morbidity (drugs and alcohol) • Social contexts as determining/shaping influences

Determinism � Twin Issues motivating laws • Inevitability of subsequent offending (prediction problem) • Inevitability of treatment failure • Recidivism of treatment participants over age-graded base rate of re-offending � Do improvements in the prediction of violence translate into better predictions of sex offending • For adults? • For juveniles? � Data • 7 -13% recidivism rates over 5 years, compared to 50% for other offenses

Source: Lisa L. Sample and Timothy M. Bray, Are Sex Offenders Dangerous? 3 Criminology and Public Policy 59 -82 (2003).

Percent of JSO’s with Adult Sex Offense Contacts Percent of Adult Sex Offenses Committed by JSO’s Source: Philadelphia Birth Cohort Study, 1958

Problems and Issues with Treatment �What are we treating? • Heterogeneity of causal paths • Co-morbid mental health conditions • Co-morbid sexual deviance • Immaturity dimensions �Social judgment, risk taking, thrill seeking, impulsivity �How are we treating it? • Addiction models • Behaviorist models • Psychogenic models

Legal Reactions � Jurisdictional Boundary – preference for criminalization via waiver for more serious cases � Consent? What age differentials? • Romeo & Juliet exceptions – consensual sex between minors age 16 and 17 (other ages? ) � Punishment • This is an eminently waivable offense. • Contradiction of jurisdictional transfer and therapeutic regime -- waiver has its own effects that complicate treatment • Limitations on correctional treatment of juvenile sex offenders in adult correctional placements

Beyond Punishment � Civil Commitment • Prediction problems are reified into inevitability by statute and case law • Indeterminate civil commitment limited to those who are “violent” or dangerous �Hendricks v Kansas, 117 S. Ct. 2072, 138 L. Ed. 2 d 501 (1997) �Kansas v Crane, 534 US 407 (2002) 269 Kan. 578, 7 P. 3 d 285 • Validity of prediction in sex offender recidivsim data? No � Registration and Notification • Thresholds to mandate registration • Methods of notification • Adolescent-specific jurisprudence (Ohio) (Ohio Rev. Code Ann. § 2950. 04(A)(1)) • Offenses – broader or narrower than for adults? �Different risk thresholds, 3 tiers �Different procedures for notification at each tier �Limitations of registration at each tier

Are Juvenile Sex Offenders Required to Register? “ (http: //www. sexcriminals. com/megans-law/us/ohio/) � � A juvenile who is adjudicated delinquent for committing, on or after January 1, 2002, a sexually oriented offense, who is 14 or older at the time of committing the offense, and who a juvenilecourt judge classifies as a juvenile, sex-offender registrant is required to register. This classification includes a juvenile who receives a serious youthful offender dispositional sentence for committing a sexually oriented offense (Ohio Rev. Code Ann. §§ 2950. 01(J), (N)) A juvenile who is adjudicated delinquent for committing a sexually oriented offense is not required to register unless he or she is specifically classified as a juvenile, sex-offender registrant by a juvenile-court judge. (Ohio Rev. Code Ann. § 2950. 04(5))

New Jersey – Who is Required to Register under Megan’s Law? � N. J. S. A. 2 C: 7 -1 et seq. - offenders who must register include persons convicted, adjudicated delinquent or acquitted by reason of insanity, * of; • aggravated sexual assault, aggravated criminal sexual contact, kidnapping • Same for child victims • endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child, luring or enticing, criminal sexual conduct if the victim is a minor • attempts * Also, those offenders who have been found to be repetitive and compulsive by the court for offenses committed prior to the effective date of the act

Is Registration a Lifetime Requirement? � (http: //www. sexcriminals. com/megans-law/us/ohio/) • For most offenders and juvenile delinquents, the duty to register lasts for 10 years (Ohio Rev. Code Ann. § 2950. 07(B)(3)) • Offenders and juvenile delinquents who have been found to be habitual sex offenders must register for 20 years. (Ohio Rev. Code Ann. § 2950. 07(B)(2)) • Offenders or juvenile delinquents who have been adjudicated sexual predators and offenders who are required to register for having committed an aggravated sexually oriented offense must register for life. (Ohio Rev. Code Ann. § 2950. 07(B)(1))

Getting Off the Registry � South Dakota SL 2005, Chapter 22 -24 B-19. Criteria required to be eligible for removal from the registry. The petitioner shall show, by clear and convincing evidence, that all of the following criteria have been met: � At least ten years have elapsed since the date the petitioner first registered pursuant to this chapter. For purposes of this subdivision, any period of time during which the petitioner was incarcerated or during which the petitioner was confined in a mental health facility does not count toward the ten-year calculation, regardless of whether such incarceration or confinement was for the sex offense requiring registration or for some other offense; � The crime requiring registration was for: • Statutory rape under subdivision 22 -22 -1(5), or an attempt to commit statutory rape under subdivision 22 -22 -1(5), but only if the petitioner was twenty-one years of age or younger at the time the offense was committed; • A juvenile adjudication for a sex crime as defined in § 22 -24 B-1(1), 22 -24 B-1(9), or 22 -22 -7. 2 ; or • The circumstances surrounding the crime requiring registration did not involve a child under the age of thirteen; � The petitioner is not a recidivist sex offender. ; and � The petitioner has completely and truthfully complied with the registration and re- registration requirements imposed under chapter 22 -24 B.

Additional Jurisprudential Issues � Registration and Notification Defeats the “Stigma Avoidance” Prong of the Juvenile Court • Mortgaging defendant’s future via social exclusion? Balance -- how many sex victimizations are avoided via notification? � Ring v Arizona issues • Is civil commitment punishment, and if so, what facts are to be litigated? �Should there be an evidentiary hearing to determine recidivism risk, if risk is animating indeterminate civil commitment? • Is there a conflict between Ring and Crane? �Is registration punishment? Balancing test? Level of scrutiny? � Is Registration Punitive? • See, e. g. , State v. C. M. , 746 So. 2 d 410 (Ala. Crim. App. 1999), ruling that requiring juvenile offenders to register had the character of punishment (because this statutory requirement ran counter to numerous other statutes seeking to protect juveniles' criminal records) and was therefore an ex post facto law. See, also, In Re Ronnie A. , 585 S. E. 2 d 311 (SC 2003), where Court required 11 year old to register as a sex offender.

Alternatives � Specialized Court? • Greater authority to respond to supply of services • Mutual accountability between court, service providers, and offender • Pulls the punch on stigma � Bankruptcy Model • • Non-criminal Leveraging power of the court This would be the power of a ‘specialized court’ model Inherently democratic, places burden on other institutional domains to respond collaboratively with law to develop shared understanding of issue and identify best response sets

Closing Thought – WWFD? � The age of consent in France is 15. There is no sexual offense if a person aged 15 -18 has consensual sex. � The French Penal Code, Article 222. 23 provides a general definition, which applies to all cases of non-consensual sexual penetrations, without regard to age, gender, family relationship, etc. • Certain factors, such as age, may enter into play but only as “aggravating circumstances” for the offence and mainly bear on the sentencing phase. There is thus no special legal offense forcible rape when committed on a minor, the fact that the victim was younger 15 is only an aggravating circumstance. � However, there is analog of statutory rape in France (called “atteinte sexuelle sur la personne d’un mineur de quinze 15 ans, ” see French Penal Code, Article 227 -25). If an adult and a person under 15 have consensual sex, the adult can be liable, not for rape, but for this lesser offence (maximum punishment = 2 years + fine). • The “victim” must be conscious of the nature of the acts accomplished and be of a “sufficient age” to understand what she/he was doing. If the minor is not conscious enough of her/his acts or too young (= subjective standard), the general rape offense statute applies.

� Registries: Since 30 June 2005, France has adopted by decree n° 2005 -627 the use of such registries for sexual offenders ("fichier judiciaire national des auteurs d’infractions sexuelles“, or FIJAIS). It consists of an electronic database which is at the disposal of the judicial administration, the police but also of regional administrations. • Any individual found guilty of a misdemeanor or felony having a sexual character is automatically registered in the database. As soon as one is in the database, one must justify one’s address at least once a year. The government is currently thinking of making the database accessible to an increasing number of public administrations especially those related to education so as to enable them to check whether job applicants in the educational sector are not registered sexual offenders. (For more info go to the government website http: //www. premierministre. gouv. fr/information/actualites_20/presentation_fichier_pour_le s_53514. html)