Combating The Sexual Abuse To Prison Pipeline By Not Requiring Registration

A recent study entitled The Sexual Abuse to Prison Pipeline: The Girls’ Story published by The Human Rights Center for Girls, the Georgetown Law Center on Poverty and Inequality and the Ms. Foundation for Women highlighted the correlation between high rates of sexual abuse of girls and girls’ involvement in the juvenile justice system. Sexual abuse is one of the most accurate predictors of girls’ entry into the juvenile justice system. Girls under 18 are at very high risk of becoming victims of sexual violence.

One in four American girls will experience some sort of sexual violence before the age of 18. Fifteen percent of victims of sexual assault are under the age of TWELVE. Girls between the ages of 16 and 19 are four times more likely to be victims of sexual assault. Tragically, many of these victims, end up as defendants in the juvenile justice system for behavior that is a direct result of the trauma they suffered.

This article will focus on girls in the juvenile justice system who are both victims of sexual violence and faced with charges that they committed a sex offense on another. The number of girls accused of sex offenses has been increasing. According to one study, adolescent girls (defined as girls between the ages of thirteen and seventeen) account for one percent of forcible rapes committed by juveniles were committed by girls and seven percent of all sex offenses committed by adolescents (excluding prostitution) were committed by girls. The most common sexual offenses committed by female adolescents are non-aggressive acts, such as mutual fondling, that occur during a caregiving activity such as babysitting. The typical victim of an adolescent female sex offender is only five years old, and most are family or acquaintances of the accused adolescent.

A key difference between adolescent girls and boys charged with sex offenses is that adolescent girls are much more likely to have been victims of sexual and/or physical abuse. Critically, this study found that adolescent females accused of sex offenses “have experienced more extensive and severe physical and sexual treatment than their male counterparts.”

Similarly, compared to their male counterparts, female adolescent sex offenders were “sexually victimized at a younger age and are more likely to have had multiple perpetrators.” Interestingly, while most adolescent sex offenders are teenagers, sixteen percent of accused juvenile sex offenders are younger than twelve. A study by the Office of Juvenile Justice Delinquency and Prevention (“OJJDP”) found that, accused sex offenders were “somewhat more likely” to be female.

Many people believe that juvenile adjudications of delinquency are automatically expunged upon the youth reaching the age of majority. In reality, a juvenile adjudication of delinquency – especially for a felony -- can significantly limit a teenager’s future ability to obtain student loans and scholarships, join the military, participate in athletics, become a firefighter or a law enforcement officer or obtain one of many jobs. In the case of sex offenses, if a juvenile is aged fourteen or older and is adjudicated delinquent of certain sex offenses, she must register as a sex offender.

Under the Sex Offender Registration and Notification Act (“SORNA”), anyone “convicted of a sex offense” must register as a sex offender. While the term “conviction” does not usually apply to juveniles because juveniles are “adjudicated delinquent” rather than convicted, SORNA specifically defines the term “conviction” to include juvenile adjudications of delinquency as long as the juvenile as at least fourteen years old on the date of the offense. As discussed herein, many female juvenile sex offenders were victims of significant sexual, physical and emotional abuse before they were charged with committing a sex offense.

This article argues that effectively foreclosing a young person’s future based upon behavior that is linked to circumstances beyond their control violates the Eighth Amendment’s proscription on cruel and unusual punishment. This article proposes an alternative framework that exampts juvenile sex offenders who have been victims of sexual abuse if they fulfill certain criteria. Given the proportion of girls charged with sex offenses who were victims before they were defendants, this proposal would have a significant impact on female adolescent sex offenses.

This proposal would apply in circumstances in which the child was the victim of sexual abuse that is mitigating enough that it would violate the Eighth Amendment for the child to be required to register as a sex offender. Youth prosecuted in juvenile court are not charged with crimes, rather they are accused of having committed “delinquent acts.” While children are not charged with crimes, they are prosecuted under the same criminal statutes as adults. Therefore, defenses applicable to adults are the only defenses available to children. Over time, the juvenile system has become increasingly punitive and less rehabilitative.

When a child suffers from severe post-traumatic stress disorder due to sexual abuse, raising an insanity defense is impractical for two distinct reasons. First, insanity is notoriously difficult to prove, and, in the vast majority of cases would not provide a successful defense. For example, Florida follows the well-known M’Naughton test for insanity. Under M'Naughton, an accused is not criminally responsible for his actions if, at the time of the offense, the defendant, by reason of a mental disease or defect, (1) does not know of the nature or consequences of his act; or (2) is unable to distinguish right from wrong. Given the very high bar set by M’Naughton, a child could be suffering from the effects of abuse that significantly impacted her behavior and her ability to form the requisite intent but the diagnosis does not rise to the level of the insanity defense because the child meets the minimal standard of understanding right from wrong and understanding the consequences of her actions.

Second, if a child is adjudicated not guilty by reason of insanity, the child may be committed to a civil commitment facility indefinitely. Juvenile court jurisdiction ends at 19, but civil commitment may extend well beyond that. An adjudication of insanity will remain on the child's record and could preclude her from obtaining jobs and professional licenses in the future.

In many juvenile cases involving sex crimes, abuse and mental illness are mitigating in the sense that they provide an explanation for the conduct rather than a legal excuse. “[A] substantial body of research has long supported the hypothesis that physical maltreatment, or abuse, leads to delinquency. Victims of abuse have also been shown to engage in violent offending.” For example, the vast majority of girls in the juvenile justice system have been victims of abuse, including sexual abuse. This very often leads to a diagnosis of Post-Traumatic Stress Disorder and other mental illnesses. A victim of sexual abuse is much more likely to react violently to a perceived threat than a child who does not suffer from PTSD.

The current proposal would require that there are significant consequences for committing a sex offense as a juvenile, but without the lifelong stigma of registering as a sex offender. This recognizes that the child could form the intent to commit the charged crime, but the response would be therapeutic rather than punitive. If the child completes an appropriate treatment program, the charge would not be required to register as a sex offender. The child would also be required to perform other appropriate juvenile sanctions such as community service. In this way, the child would learn to take responsibility for actions, but the underlying trauma would be acknowledged in a way that allows the child to work towards a positive future.

This proposal is consistent with the theories of Therapeutic Jurisprudence/preventive law model that focuses on rehabilitation rather than punishment. The theory of therapeutic jurisprudence is to 'broaden the counseling mission, and... convert the practice of law into a helping and healing profession in ways that make it a much more humanitarian tool.”

Therapeutic Jurisprudence is inconsistent with current law and procedure in juvenile court. Because the collateral consequences of a felony conviction are lifelong, children are advised to invoke their right to remain silent and have almost no role in the process. This proposal would allow the child to testify to the circumstances of her life and how it impacted her behavior without subjecting her to the equivalent of adult criminal consequences.

Originally, the goal of juvenile court was rehabilitation. That changed drastically over time, and now, the relevant Florida Statute provides that the purpose of the delinquency system is to 'first protect the public from acts of delinquency.' F.S. 985.03(3). This article will argue that the punitive model has failed and that it is time to allow a procedure that recognizes the unique issues faced by juveniles with mental health issues, especially when those issues are the result of abuse.

The Supreme Court has recognized in a recent series of cases that the brains of even normal children function entirely differently than those of 'normal' adults. Recent Supreme Court cases have recognized the science underlying the common-sense notion that children are not “little adults.” Their brains function in a completely different manner than those of adults. In 2005, the Court abolished the juvenile death penalty and recognized the neuroscience underlying the claim that those under the age of eighteen should not be subject to the ultimate punishment due to the fundamental immaturity of their brains. Later cases, discussed in depth below, followed similar reasoning in abolishing life without parole for non-homicides for juvenile offenders and in holding that juvenile offenders cannot be subjected to a mandatory life sentence even for homicide.

Delinquency proceedings are proceedings in juvenile court in which children are charged with “delinquent acts”—the juvenile equivalent of an adult crime. In most states, the law provides that delinquent acts are not crimes. While every state has a juvenile court system today, the role of juvenile court has changed over time; “[a]t the dawn of the twentieth century, progressive reformers applied the new theories of social control to the new ideas about childhood and created a social welfare alternative to criminal courts to treat criminal and noncriminal misconduct by youth.”

After several decades of reform, delinquency courts now closely resemble adult criminal courts. Barry Feld has identified three types of reform affecting the juvenile court system: jurisdictional, jurisprudential, and procedural. Recent years have seen an increase in society’s desire to criminalize the conduct of children. While penalties have become harsher and juvenile sanctions have become more like criminal sanctions, juvenile courts are not required to provide children with the same protections afforded to adult defendants. According to Feld, “[a]lthough theoretically, juvenile courts’ procedural safeguards closely resemble those of criminal courts, in reality, the justice routinely afforded juveniles is lower than the minimum insisted upon for adults.” Feld argues:

The substantive and procedural convergence between juvenile and criminal courts eliminates virtually all of the differences in strategies of social control between youths and adults. As a result, no reason remains to maintain a separate juvenile court whose only distinction is its persisting procedural deficiencies. Yet, even with the juvenile court’s transformation from an informal, rehabilitative agency into a scaled-down criminal court, it continues to operate virtually unreformed. The juvenile court’s continued existence despite these changes reflects an ambivalence about children and their control, and provides an opportunity to re-examine basic assumptions about the nature and competence of young people.

Historically, youth in delinquency court were not afforded all of the protections given to adults facing criminal charges. This was because juvenile court was seen as a way for the state to step in where children were engaging in socially unacceptable behavior, often due to lack of supervision at home.. Some have noted a distinct class element to early juvenile courts, arguing that such courts were a way for society to exercise control over “lower-class” youth. A report submitted by the Cook County (Illinois) Bar Association to the Illinois state legislature in support of the creation of the first juvenile court stated that:

The fundamental idea of the Juvenile Court Law is that the State must step in and exercise guardianship over a child found under such adverse social or individual conditions as develop crime... It proposes a plan whereby he may be treated, not as a criminal, or legally charged with a crime, but as a ward of the state.

Over time, however, the courts, including the United States Supreme Court, began to recognize that the ideal of kindly juvenile judges who used their wide discretion to help at-risk children was far from the reality faced every day by children in delinquency court. In the seminal case of In re Gault, the United States Supreme Court stated:

Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote: ‘The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts’.... The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness.