Sex Offenses: Balancing Protections For All Children

8-13-2009 National:

Legislators don't win reelection by appearing to be weak on issues surrounding public safety. Accordingly, there is a subtle, almost constant pressure to increase the sanctions and penalties for notable crimes. This is particularly true in the case of sex offenses against minors.

Few lawmakers are willing to stand up in defense of those convicted of sex crimes, when constituents can so readily picture the most gruesome and horrific events leading to these convictions. As a result, sex offenders are regularly subject to severe penalties, followed by ongoing monitoring long after they any sentence has been completed.

However, the image of a sex offender that is emblazoned in the collective consciousness does not always match the reality. In some states, children as young as seven years old can be labeled sex offenders and listed on the sex offender registry. This is a disturbing trend in which the laws that are designed to protect children from harm are increasingly being used against children themselves.

This is absolutely the wrong approach to handling children accused of sex offenses.

The Laws Governing Juvenile Sex Offenders

For children accused of committing sex offenses, two systems govern the potential penalties and repercussions of inappropriate actions.

Misconduct by youthful offenders is often addressed by the juvenile justice system rather than the criminal justice system. For example, under the Juvenile Act in Pennsylvania, a child accused of a crime is subject to an adjudication of delinquency rather than a criminal conviction.

The law provides some exceptions to this rule. Certain severe acts are subject to more serious criminal penalties even when committed by a person under the age of 18. Most of the time though, the juvenile justice system seeks to educate and rehabilitate youthful offenders without creating a permanent criminal record that will haunt the child for years to come.

On the federal level, the registration of sex offenders is governed by the Adam Walsh Child Protection and Safety Act of 2006. This Act increases federal criminal penalties for many crimes committed against children, increases penalties for crimes related to child pornography, and standardizes the minimum reporting requirements for sex offenders. The Act mandates the creation of a national sex offender registry and ensures that this registry will be placed on a publically accessible Web site.

For registration purposes, the Walsh Act incorporates a broad definition of the term "convicted." In addition to those truly convicted of sex crimes under the relevant criminal laws, this term includes those who are over the age of 14 and adjudicated of crimes comparable to or more severe than the federal crime of aggravated sexual assault. This broad definition has resulted in the public shaming of children, who would traditionally be protected and guided through the juvenile justice system.

The federal government is not mandating compliance with the Adam Walsh Act; states may choose not to adopt laws in compliance with the Adam Walsh Act. However, states that do not fully comply with the Act by July 2010 will lose part of their federal crime prevention grants.

The Problem with Treating Children As Adults

There are many problems with treating children as adults. Most importantly, penalties should acknowledge that the reasons for punishing a 40-year-old with a long history of sexual offenses are different that those for punishing a 14-year-old who once behaved inappropriately.

For adults, the sex offender registry serves multiple purposes. First, the serious penalties are intended to operate as a general deterrent; the idea is that the knowledge that committing a sex crime may result in life-long registry as a sex offender will help to prevent someone from committing a crime before it happens. Additionally, registration serves as a specific deterrent to prevent the individual sex offender from offending again; a person listed as an offender against children will likely have fewer opportunities to interact with children, which thereby protects the public.

For juveniles, the primary focus of the juvenile justice system is rehabilitation and education. The intent is to help children understand their actions and recognize that these actions are unacceptable. The sex offender registry cannot reasonably be considered a deterrent; a 14-year-old child cannot conceptualize lifetime mandatory registration, or even the 15 years of registration mandated by the lowest level offenses.

Furthermore, teenagers don't understand the practical implications of their actions, and serious criminal charges have not yet adapted to changing technologies and teen practices. Across the country, teenagers are being charged with possession of child pornography, as a result of the recent surge in "sexting." Teenagers are sending nude photographs of themselves to their friends or significant others; because the photographers and recipients are underage, this amounts to child pornography.

This is a significant problem and an issue that many states are currently attempting to address. While the laws are evolving, though, it is important to ensure that the laws designed to protect children do not inadvertently or unreasonably punish them.

When children are harmed, the obvious and immediate reaction is to increase the penalties in an attempt to prevent such events from happening again. When a child is responsible for the harm though, it is important to remember that two children must be protected. Laws affecting juveniles must be written to address their unique needs and to guide future decisions, not designed to punish and ultimately alienate them. ..Source.. by The Law Offices of David S. Shrager