Two years ago, the U.S. Department of justice prosecuted a 10-year-old boy for aggravated sexual assault on five boys, ages 5-7. The assaults happened on an Army base in Arizona, which is why the DOJ was involved. After winning a delinquency judgment (the equivalent of guilty in juvenile court), the boy was sentenced to five years probation and required to participate in mandatory psychological treatment.
He must also register as a sex offender for the rest of his life
In 1994, Congress passed a law that required all states to set up a system to track convicted sexual offenders. The Wetterling Act mandated states track sexual offenders’ residency for ten years, or for life in the case of violent offenders. In the aftermath of the rape and murder of 7-year-old Megan Kanka by her neighbor, a registered sex offender, Megan’s Law was passed in 1996 requiring every state to make relevant information about registered sex offenders publicly available if deemed crucial to the safety of the community. This led to states establishing notification laws and databases that could be accessed online.
Now the efficacy of these laws has come into question.
Aside from the fact that almost 90 percent of the sexual crimes against children are by someone they know and trust, these laws assume that the biggest danger comes from strangers. Designed initially to track the most serious offenders, many states have cast a wider net of sexual offenses that require registration. Many believe that when they browse their state’s sex offender registry, they are coming face to face with violent rapists and pedophiles when, in fact, the registries also include those convicted of public urination or indecent exposure.
Many of them are children.
In May of this year, Human Rights Watched issued a report called Raised on the Registry in which they examine the long term effects of requiring children and teens to be on the sex offender registry. They tell the story of an 11-year-old boy in Michigan who inappropriately touched his sister on her genitals (without penetration) and ended up being bounced around foster care. His sex offender registration followed him through high school, university (where he dropped out), and eventually to losing custody of his daughter at 26 because he could not find work.
After ten years, he was able to have his name removed from the registry – but the damage to his life had been done. All for something he did at 11 years old.
Children as young as 9 are being required to register for offenses that in some cases amount to what was once called “playing doctor.” Many teenagers are being charged for teenage behavior, like sending naked photos of themselves, or having sex – with other teenagers. In a case in Colorado, a boy was put on the registry for repeatedly trying to hug a girl when he was 13. Of the cases they reviewed for the report, less than 6 percent of the charges were for violent offenses.
The Adam Walsh Child Protection and Safety Act of 2006 included a provision that required juvenile offenders 14 years of age or older, who had engaged in genital or anal contact (including orally) with a child under the age of twelve to be required to register as a sex offender. Prior to this, many states excluded juveniles from their registries. This act also expanded the definition of sexual offenses to include any criminal offense involving a “sexual element” with a minor. Like hugging.
The question is, what if everyone involved is under the age of twelve?
The case of the 10-year-old boy came to light due to an appeal by the boy’s public defender, Keith Hilzendeger, which was heard last month at the Ninth Circuit Court of Appeals in California. Hilzendeger feels it is unconscionable that a child under the age of 12 should have to register as a sex offender. The case documents are sealed due to the defendant’s age, however his attorney argued that the 2006 statute was not clear when the offender, as well as the victim, are under the age of 12.
The assistant U.S. Attorney disagrees.
The DOJ pursued the case due to the severity of the conduct which, according to the prosecutor, included allegations of anal penetration, repetitive behavior and threats. Assistant U.S. Attorney Bruce Ferg counters the defense’s argument saying, “It is not vague to say, ‘if you do this kind of activity, we don’t care what age you are, you are liable for prosecution.’” Ferg claims that they are helping the child by getting him the therapy he needs. Furthermore, by requiring him to be on the registry, they are making sure it doesn’t happen again.
But can a 10-year-old be liable for behavior that is so obviously aberrant?
Aside from the numerous studies that show children’s brains are not fully formed (and aren’t until the mid twenties), it doesn’t take much to realize that any child participating in such disturbing behavior is in need of help, not prosecution. According to David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, children under 12 who engage in exploitative sexual behavior do so because of abuse or exposure to sex acts, either directly or through pornography. The National Center on Sexual Behavior of Youth further states that adolescent offenders normally do not have “deviant sexual arousal” or display predatory behavior that would qualify them as pedophiles.
In other words, they are children who are acting out or acting impulsively in an inappropriate manner.
Even in the more severe cases, studies have shown that children and teens are much more responsive to intensive treatment and are much less likely to reoffend than adult offenders or those who commit other crimes, such as burglary. Those that are not are usually older (16 years or older) and have a long history of deviant behavior that had not been addressed.
We don’t know the details of the now 12-year-old boy’s short life, or what circumstances led him to committing these horrible acts against young children. Yet requiring him to register as a sex offender punishes him for the rest of his life for something he did at 10. Biology, sociology and common sense tell us that he is also a victim.
It would seem that real justice would be about healing not only for the five little boys he hurt, but also for him.