The Criminalization of Youth

Throwing the Book at the Kids
When kids are “victims” of their own “crimes,” can they really be tried as adult offenders against children?

 by Joe Power

A rash of cases where kids are being charged with sex crimes for making and distributing pictures of themselves has legal scholars troubled.

The best known current case (because of interest on the internet) comes from Latrobe, PA where State police have charged a 15-year-old girl with child pornography for taking photos of herself and posting them on the Internet.

Police said the girl, whose identity they withheld, photographed herself in various states of undress and performing a variety of sexual acts. She then sent the photos to people she met in chat rooms.

She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography.

In Roanoke, VA two 16 year old high school girls who took nude pictures of themselves and e-mailed them to their boyfriends were charged with production and dissemination of child pornography.

One of the boys who received the pictures was charged with possession of child pornography. That charge was taken under advisement and will be dismissed if he stays out of trouble.

In Middletown, CN, three boys are facing sexual assault charges. Two are nine years old and one is twelve. The victim, police say, is only seven.

According to police, one of the boys showed a knife and forced the young girl to perform oral sex on one of the nine-year-old boys.

Parents in the neighborhood say there were other children around and can’t understand why no one went for help.

A Canberra, Australia-based health unit working with abused and abusive children has recorded a significant rise in the number of children aged younger than 10 who are accused of sexual offences, including “oral sex and forced intercourse,” against other children.

The child-at-risk assessment unit at Canberra Hospital says that in the mid-1990s, it was seeing as few as three children a year who were engaged in “sexually-abusive behavior.”

By 2000 the number had risen to 28, and during 2003, an estimated 70 such children were seen, unit member and social worker Cassandra Tinning told a child abuse conference in Sydney.

In Claremont, SD, a 13-year-old boy is facing 6 counts of creating child pornography. Officials say the boy took pictures of other minors with a still camera. The teen is also being charged with 2 counts of sexually exploiting a minor. Officials say there are 3 victims in the case, ages 7 to 13 and all male. “With juveniles we do have a wide variety of options to not only punish the youth but also to hopefully treat any problems that he may have,” says Brown County Deputy States Attorney Rachel Wilkins. As for the victims? “Hopefully they will get some counseling,” says Wilkins.

In Brockton, MA authorities are probing an alleged junior high prostitution racket, and may charge a 13-year-old girl accused of pressuring her mentally impaired friend into turning tricks for as little as $5.

According to one source, the trysts had been going on for weeks and involved as many as 20 boys from West Junior High and Brockton High School.

The case surfaced when two girls told school officials they were solicited by the accused junior high madame to join her upstart sex ring. A third girl also came forward.

In Deschutes, OR, a 12 year old boy was accused of committing a sexual offense with a 6 year old girl in his neighborhood, after having previously been released to his parents’ custody for a prior sex offense.

The boy was waiting for a place to open in a residential treatment program — and living at home — when the abuse allegedly occurred. The state and county had been unable to find a place in a residential program for him.

He had been returned home because of limits on how long juveniles can be held in detention, a lack of resources for juvenile sex offenders and a supervision plan that relied upon the cooperation of the parents.  The state’s juvenile code allows juveniles to be held in detention a maximum of 56 days from the time they are first brought into the juvenile department until their cases are complete.  In addition the law requires authorities to offer juvenile offenders an opportunity to reform with the least restrictions possible, while still keeping the community safe.

Jenny Scanlon, director of Deschutes County Juvenile Community Justice, said the county has few options for placing juvenile sex offenders into residential treatment programs.

For example, the Oregon Youth Authority has 117 spots available for juvenile sex offenders under its custody. There are currently 65 juvenile sex offenders on waiting lists for one of those spots.  The number of juvenile sex offenders has doubled in the past eight years to between 65 and 70 offenders annually.

The Deschutes County District Attorney’s office has seen the number of juvenile sex offense charges increase from 18 in 1997 to 129 this year. Of the charges filed this year, 87 have been first-degree offenses.

In Wilton, ME, police charged an 11-year-old boy with two counts of gross sexual assault involving two younger boys.

According to the county’s sexual assault investigator, the victims were a five- and a six-year-old boy.  The boys were not threatened by the older boy and were not injured but did undergo medical examinations, police said.  The alleged assault occurred in the older boy’s second-floor bedroom at his home while the younger boys were over visiting. The older boy was charged with the assault and is now in the custody of his parents. The case has been turned over to the juvenile justice system.

A Confusion of Principles
In the Latrobe, PA case, the newspaper article did not go into any further detail, so we can only speculate as to why authorities would charge a person normally considered “the victim” of the charged offenses. It is possible the charges are being used as a means of prosecuting her online recipients because the article also said that the police “are trying to identify all the people who receive photos from the girl.” Pretextual charges against the victim would allow law enforcement agents to seize her computer in order to make those identifications.

It is not clear that the prosecution of such recipients would have a sound legal basis in the absence of proof that they solicited what they knew to be child pornography, but possession of child pornography is an unusually strict liability crime. See, e.g., State v. Peterson, 535 N.W.2d 689, 690-92 (Minn. App. 1995) (discussing parameters of strict liability with regard to child pornography-related offenses and upholding strict liability offense); but also see State v. Maxwell, 767 N.E.2d 242, 247 (Ohio 2002) (intimating that a jury might reasonably find deletion of child pornography from one’s computer to be a circumstance that would support a claim of download by mistake).

Even setting aside this concern, prosecuting the girl for distributing her own self-portraits is as absurd as prosecuting a minor for ‘aiding and abetting statutory rape.’

Here is how one writer — The Curmudgeonly Clerk
< http://www.curmudgeonlyclerk.com/weblog/ > — put it:

Were I this 15-year-old’s counsel, I would argue much the same thing, but with substantially greater vigor. For, if anything, Professor Volokh understates his case. It is not just that this girl should not be prosecuted, her prosecution is actually unlawful in my opinion. See In re Meagan R., 49 Cal. Rptr. 2d 325, 330 (Cal. Ct. App. 1996) (holding that 14-year-old, “as the victim of the statutory rape, cannot be prosecuted on that charge, regardless whether her culpability be predicated upon being a coconspirator, an aider and abettor or an accomplice given her legislatively protected status”).
The whole point of criminalizing sex with minors, after all, rests on the notion of protecting them from themselves. See People v. Hastings, 938 P.2d 78, 81 (Colo. Ct. App. 1998) (noting that “the purpose underlying [the] crime of statutory rape is to protect children from the consequences of acts they cannot comprehend”). Much the same can be said of offenses concerning the sexual abuse of minors and child pornography.
Moreover, the statutory rape parallel suggests an additional policy-related rationale for rejecting the sort of prosecution at issue. As the California court of appeals noted in In re Meagan R., allowing prosecution of “the victim” would threaten the very viability of statutory rape as an offense altogether by discouraging such persons from coming forward. See 49 Cal. Rptr. 2d at at 330 n.8 (“Confronted by the possibility of criminal prosecution predicated upon vicarious liability, it is doubtful a minor victim of a violation of the statute would be likely to report the offense to authorities.”). This observation likewise applies with equal force to the laws concerning sexual abuse of minors and child pornography.
Indeed, what renders the Pennsylvania prosecution even more curious is that the foregoing legal principles are of longstanding pedigree. See The Queen v. Tyrrell, 1 Q.B. 710, 712-13 (1893) (reciting the foregoing rationales for disallowing prosecution of female for aiding and abetting male to have “unlawful carnal knowledge” of her); Gebardi v. United States, 287 U.S. 112, 116-23 (1932) (rejecting Mann Act prosecution of woman transported across state lines for the purpose of prostitution advanced on theory that she was a co-conspirator in her interstate transport solely on the basis of her consent thereto). The principles at work in Tyrrell and Gebardi have hardly fallen into desuetude. See State v. Lucas, 795 N.E.2d 642, 644-48 (Ohio 2003) (citing both cases, as well as In re Meagan R., to similar legal effect in different factual context).

Another writer — PG from De Nove
< http://www.blogdenovo.org/ > — does see some merit in the case:

Eugene Volokh adds, “[I]t hardly seems to be much of a service to her — who is after all the supposed victim as well as the perpetrator — or to the fight against child porn more broadly,” though Prof. Volokh premises his disapproval on its being “a full-bore prosecution” rather than “one of those scare-the-kid-a-bit prosecutions.”

But as one TalkLeft commenter pointed out: “Seems to me she was distributing child pornography. They are going to aggressively pursue those that received it, so why not charge the distributor?”

This is the crux. As Froomkin admits, “child porn is an unusually strict liability crime, in which possession alone, without intent or even knowledge, constitutes the offense.” People who received the photos as attachments and saved them without bothering to click on them later — as I’ve done with attachments when in a hurry to clear out my e-mail — may be in possession of child pornography without intent or knowledge, and subject to prosecution.

The alleged self-pornographer thus put other people at risk of criminal penalties, including fines, prison terms and felony records.

One might argue that the strict liability regime is inappropriate, or that penalties for possession of child pornography depicting teenagers are excessive. Nonetheless, this is the current state of the law. Even if the sentencing judge or jury is sympathetic to these arguments, the law frequently mandates punishment.

The Supreme Court said in Osborne v. Ohio that “[the state] hopes to destroy a market for the exploitative use of children. [...] evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.” In other words, the harm exists not only directly to the child depicted in the particular pornographic material, but also indirectly to other children.

Obviously this young woman cannot be tried as an adult, and therefore the punishment she receives is not going to be the same as what is normally meted out to disseminators of child pornography. This is all to the good, and I hope that the end result, if she is found guilty, is more along the lines of forcing her guardian to monitor her activities closely and getting her counseling.


PG is probably wrong when he says the young woman cannot be tried as an adult. Just because she is considered a child for the purpose of charging people for receiving the photos, doesn’t mean she can’t be tried as an adult for sending them out. The two cases are separate legal analyses.

Under PA law, she’s charged with one second-class felony and two third-class felonies. She can get up to 24 years in prison.

Since she “sexually assaulted” a child, she may well be subject to mandatory registration and potential community notification under PA’s Megan’s Law.

Indeed, it is by no means clear that the registration of juveniles as sex offenders is out of the mainstream in American law in general. Compare In re Derrick B., 11 Cal. Rptr. 3d 396, 399-405 (Cal. Ct. App. 2004) (holding that minor could be required to register as sex offender), with In re Bernardino S., 5 Cal. Rptr. 2d 746, 747-51 (Cal. Ct. App. 1992) (finding that minor sex offender did not have to register as such, but indicating that law could require registration by minor sex offenders under some circumstances). Review has been granted in the Derrick case, 14 Cal. Rptr. 3d 565 (Cal. 2004), so the result may be reversed. But at least two states’ high courts have already determined that juveniles may be required to register as sex offenders. In re J.W., 787 N.E.2d 747, 750-62 (Ill. 2003) (12-year-old boy adjudged delinquent required to register as sex offender for two counts of aggravated sexual assault); In re Ronnie A., 585 S.E.2d 311, 312 (S.C. 2003) (11-year-old boy adjudicated delinquent required to register as sex offender for first degree sexual assault); cf. In re D.J.A., No. 99-1968, 2000 WL 1028089, at *1-2 (Iowa Ct. App. July 16, 2000) (unpublished opinion) (noting that lower court had authority to order juvenile sex offender registration under some circumstances, but reversing on the facts); In re Z.S., No. 98-2215, 2000 WL 504497, at *1-4 (Iowa Ct. App. Apr. 28, 2000) (unpublished opinion) (same); see also State v. C.M., 746 So. 2d 410, 413 (Ala. Crim. App. 1999) (discussing various state laws concerning sex offender registration as it applies to minors).

In the case from Roanoke VA, here is the Curmudgeonly Clerk’s analysis:

I find Judge Trompeter’s decision that these girls could be prosecuted for the aforementioned child pornography offenses to be quite mistaken. Trompeter is correct that the overarching purpose of child pornography offenses is the protection of minors from sexual exploitation. See, e.g., United States v. Whiting, 165 F.3d 631, 634 (8th Cir. 1999) (“The purpose of laws prohibiting child pornography is not to police the morals of the public, but to protect children from the injuries that accompany and flow from, sexual exploitation, particularly the production and distribution of child pornography.”); United States v. Norris, 159 F.3d 926, 931 (5th Cir. 1998) (“The titles of the acts show that the focus of Congress was on protecting children, not, as Norris would have it, a general concern for society as a whole.”), cert. denied, 526 U.S. 1010 (1999).

Where Trompeter is wrong is in his conclusion that such statutes may be employed to criminalize so-called “self-exploitation.” The law of statutory rape, another area of the law designed to prevent the sexual exploitation of minors, demonstrates Trompeter’s error. See, e.g., In re Meagan R., 49 Cal. Rptr. 2d 325, 330 (Cal. Ct. App. 1996) (holding that 14-year-old, “as the victim of the statutory rape, cannot be prosecuted on that charge, regardless whether her culpability be predicated upon being a coconspirator, an aider and abettor or an accomplice given her legislatively protected status”). The point of criminalizing sex with minors, after all, rests on the notion of protecting them from themselves. See, e.g., People v. Hastings, 938 P.2d 78, 81 (Colo. Ct. App. 1998) (noting that “the purpose underlying [the] crime of statutory rape is to protect children from the consequences of acts they cannot comprehend”). The very same thing is true of offenses concerning child pornography.

The principle that a class of victims singled out for protection be a statutory scheme cannot be prosecuted thereunder is a longstanding one in Anglo-American law. See, e.g., The Queen v. Tyrrell, 1 Q.B. 710, 712-13 (1893) (reciting the foregoing rationale for disallowing prosecution of female for aiding and abetting male to have “unlawful carnal knowledge” of her); Gebardi v. United States, 287 U.S. 112, 116-23 (1932) (rejecting Mann Act prosecution of woman transported across state lines for the purpose of prostitution advanced on theory that she was a co-conspirator in her interstate transport solely on the basis of her consent thereto). The principles at work in Tyrrell and Gebardi continue to be honored in our legal tradition. See, e.g., State v. Lucas, 795 N.E.2d 642, 644-48 (Ohio 2003) (citing both cases, as well as In re Meagan R., to similar legal effect in a differing factual context).

Moreover, quite apart from the aforementioned legal principle, prosecution is ill-advised under such circumstances. By criminalizing the conduct of the victim of the crime, the state may discourage future victims less willing to come forward. As the California court of appeals noted in In re Meagan R., allowing prosecution of “the victim” would threaten the very viability of statutory rape as an offense altogether by discouraging such persons from coming forward. See 49 Cal. Rptr. 2d at at 330 n.8 (“Confronted by the possibility of criminal prosecution predicated upon vicarious liability, it is doubtful a minor victim of a violation of the statute would be likely to report the offense to authorities.”). Such prosecutions also, perhaps, lend credence to potential sentencing arguments in which criminal defendants might argue that they are less culpable for child pornography offenses by virtue of their victims’ willing participation in their own exploitation.

Both consequentialist concerns and the principle that persons should not be prosecuted under statutes designed for their protection are highlighted by the fact that, if convicted, the 16-year-old girls in question might actually have to register as sex offenders under Virginia’s sex offender registration statute. Va. Code §§ 9.1-902, 18.2-374.1. I stress “might” due to their status as minors, but it is by no means clear that minors are uniformly exempt from such requirements under Virginia law. In fact, the law seems to be to the contrary. See Va. Code § 16.1-309.1.

Indeed, it is by no means clear that the registration of juveniles as sex offenders is out of the mainstream in American law in general. Compare In re Derrick B., 11 Cal. Rptr. 3d 396, 399-405 (Cal. Ct. App. 2004) (holding that minor could be required to register as sex offender), with In re Bernardino S., 5 Cal. Rptr. 2d 746, 747-51 (Cal. Ct. App. 1992) (finding that minor sex offender did not have to register as such, but indicating that law could require registration by minor sex offenders under some circumstances). Review has been granted in the Derrick case, 14 Cal. Rptr. 3d 565 (Cal. 2004), so the result may be reversed. But at least two states’ high courts have already determined that juveniles may be required to register as sex offenders. In re J.W., 787 N.E.2d 747, 750-62 (Ill. 2003) (12-year-old boy adjudged delinquent required to register as sex offender for two counts of aggravated sexual assault); In re Ronnie A., 585 S.E.2d 311, 312 (S.C. 2003) (11-year-old boy adjudicated delinquent required to register as sex offender for first degree sexual assault); cf. In re D.J.A., No. 99-1968, 2000 WL 1028089, at *1-2 (Iowa Ct. App. July 16, 2000) (unpublished opinion) (noting that lower court had authority to order juvenile sex offender registration under some circumstances, but reversing on the facts); In re Z.S., No. 98-2215, 2000 WL 504497, at *1-4 (Iowa Ct. App. Apr. 28, 2000) (unpublished opinion) (same); see also State v. C.M., 746 So. 2d 410, 413 (Ala. Crim. App. 1999) (discussing various state laws concerning sex offender registration as it applies to minors).
Here are a few of the better comments from these discussions:
“A little reflection, and a moment’s Westlaw, suggests that as regards the 15 year old’s having copies of pictures of herself, she’s arguably protected under Stanley v. Georgia, 394 U.S. 557 and Osborne v. Ohio, 495 U.S. 103 (1990). Stanley - something of an orphan in the law - holds that private possession of porn in the home is protected, but sharing isn’t. Osborne is oft cited for the idea that child porn is outside the rule in Stanley but in fact the case said that a state anti-child-porn law was constitutional because it protected minors from exploitation - and because the state courts had read in a mens rea requirement. This prosecution would fail at least the first of those tests, and probably both. But that doesn’t speak as clearly to her exposure to prosecution for sending the pictures of herself.”
“So if I’m reading between the lines here correctly on the “child abuse” charge, did they just claim that you can’t masturbate if you’re under age?
We’re gonna need a really big jail.”
“Michael’s logic for supporting bans on possession of child pornography apparently is:
1. Possessing child porn encourages distribution
2. Distribution encourages manufacture
3. Manufacture harms the children
Let’s apply the same logic to terrorism:
Unquestionably, discussion of terrorist attacks and the endless replays of related footage embolden and encourages the terrorists. And even more clearly, terrorist acts harm people, far more than taking nude photos of children. So I guess it would be alright and sensible for the government to ban discussion of terrorist acts.
Who needs the First Amendment when you can ban speech for having a tenuous relation to some past harm? Good thing we have Ashcroft to decide what speech is of value!”
“Why does it show she’s disturbed because she’s 15? Does she not have hormones? If she were 16, she wouldn’t be disturbed?
Furthermore, I believe it’s ridiculous to go after people the law was meant to protect. It shows that the legal system is pushing a moral agenda, not trying to protect people. Also, it shows they act on emotions, rather than logic.”

Simple Justice and Common Sense
Why spend so much time on this? There are actually quite a few reasons. Such cases help to show the inadequacy/wrongheadedness of the majority’s approach to youth sexuality. They expose the law as a crude tool for dealing with human emotion.

Like the “War on Poverty”, the “War on Drugs”, and the “War on Terror”, the “War on Child Abuse” will never be won (because it is in the “warrior’s” financial interest never to win but always to be about to win) and will expand ever outward (to justify increasing budgets and bureaucracies) inflicting ever more collateral damage.

It is imperative for the abuse warriors to suppress images of child sexuality and to equate all such images with the worst and actually horrific examples.  If pictures of kids enjoying and having fun with sex were widely available, this would contradict their lie that children are non-sexual and could cause people to question their philosophy and motives.

Having convinced most people that children are non-sexual, they can then use these cases to shock & horrify people into demanding that laws be strengthened and rights surrendered in order to combat this nascent evil.

It doesn’t bother most of them that real kids are having real lives ruined (“We had to destroy the village in order to save it.” — sound familiar?) because the true believers care more about their beliefs than about people and the cynical opportunists care about no one but themselves.

We quoted as extensively as we did from the blogs we cited to give you references to the cases mentioned and to illustrate how arbitrary and abstract the law can become when it isn’t grounded in simple justice and common sense. When a law can put a person on a sex offender registry for life for posting nude pictures of herself, no sane and decent person can claim that is a just or sensible law.

So long as we deny that children are sexual beings, however, that is exactly the kind of law we are going to have.

From the NAMBLA Bulletin, Vol. 24, No. 4, pgs. 10 - 13, Oct. 2004.
Copyright ©  NAMBLA, 2008.


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Criminalization of Youth