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Volumn 79, Issue 2, 2006, Pages 499-514

Challenging the prosecution of young "sex offenders": How developmental psychology and the lessons of Roper should inform daily practice

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EID: 33947714241     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper
Times cited : (12)

References (87)
  • 1
    • 33947721458 scopus 로고    scopus 로고
    • Forty states and the District of Columbia define a delinquent act, delinquent child, delinquent juvenile, or juvenile offender as, inter alia, an act that violates adult criminal statutes. See ALA. CODE § 12-15-1(8, LexisNexis 2005, defining [d]elinquent act as commission by child of violation, misdemeanor, or felony offense under state or federal law except violations of traffic laws by juvenile sixteen years old or older or curfew offenses, ALASKA STAT. § 47.12.020 (2004, providing jurisdiction over delinquent minor who is under eighteen and has been charged or convicted of violating criminal law of state or municipality, ARIZ. REV. STAT. ANN. § 8-20110, 1999, defining [d]elinquent act as act committed by child that would be considered criminal offense or petty offense of state or federal law if committed by adult or violation of any law that has b
    • Forty states and the District of Columbia define a delinquent act, delinquent child, delinquent juvenile, or juvenile offender as, inter alia, an act that violates adult criminal statutes. See ALA. CODE § 12-15-1(8) (LexisNexis 2005) (defining "[d]elinquent act" as commission by child of violation, misdemeanor, or felony offense under state or federal law except violations of traffic laws by juvenile sixteen years old or older or curfew offenses); ALASKA STAT. § 47.12.020 (2004) (providing jurisdiction over "delinquent minor" who is under eighteen and has been charged or convicted of violating criminal law of state or municipality); ARIZ. REV. STAT. ANN. § 8-201(10) (1999) (defining "[d]elinquent act" as act committed by child that would be considered criminal offense or petty offense of state or federal law if committed by adult or violation of any law that has been designated delinquent offense); ARK. CODE ANN. § 9-27-303(15) (Supp. 2005) (defining "[d]elinquent juvenile" as any minor ten years old or older who commits act which if committed by adult would result in prosecution for felony, misdemeanor, or violation of applicable state criminal law and any juvenile charged with capital murder or murder in the first degree); COLO. REV. STAT. § 19-1-103(36) (2004) (defining "[d]elinquent act" as act committed by juvenile under eighteen years of age in violation of any federal, state, municipal, or county law enumerated in COLO. REV. STAT. § 19-2-104(1)(a)); CONN. GEN. STAT. ANN. § 46b-120(11) (West 2004) (defining "delinquent act" as violation of any federal or state law or municipal or local ordinance other than behavior regulations "of a child in a family with service needs"); DEL. CODE ANN. tit. 10, § 901(7) (1999) (providing that "delinquent child" is any child under eighteen years old who commits act that would be criminal if committed by adult); D.C. CODE ANN. § 16-2301(7) (LexisNexis 2005) (stating that "delinquent act" is any offense under District of Columbia, state, or federal law, excluding traffic offenses, committed by juveniles over age sixteen); FLA. STAT. ANN. § 985.03(9) (West 2006) (defining "[c]hild who has been found to have committed a delinquent act" as child under eighteen who has committed any violation of law except contempt of court during juvenile court proceeding); GA. CODE ANN. § 15-11-2(6) (2005) (defining "[d]elinquent act" as violation of any state law, federal law, or local ordinance but excluding offenses only applicable to children and juvenile traffic offenses); IDAHO CODE ANN. §20-502(13) (LexisNexis 2004) (defining "[j]uvenile offender" as person under age eighteen in custody, care, or jurisdiction of department of juvenile corrections after adjudication for "delinquent act which would constitute a felony or misdemeanor if committed by an adult"); 720 ILL. COMP. STAT. ANN. 130/1a (West 2003) (defining "delinquent child" as child under seventeen who violated or attempted to violate any federal or state law or municipal ordinance); IND. CODE ANN. § 31-37-1-2 (LexisNexis 1997) (stating that child under eighteen commits "delinquent act" where act would be criminal if committed by adult); IOWA CODE ANN. § 232.2(12) (West 2006) (defining "[d]elinquent act" as any act that would be unlawful if committed by an adult, notwithstanding offenses that are exempted by law); KAN. STAT. ANN. §§ 38-1602(a)-(b), 38-1604(a)-(c) (2000) (defining "[j]uvenile offender" as any juvenile between ten and eighteen years old who commits felony or misdemeanor punishable by state law, with exception of specific offenses, and granting district court jurisdiction over accused juvenile offenders); LA. CHILD. CODE ANN. art. 804(3) (2004) (defining "[d]elinquent act" as act that would violate federal or applicable state or local law, except traffic violations, provided that act is committed by child at least ten years old); MD. CODE ANN., CTS. & JUD. PROC. § 3-8A-01(d), (l)-(m) (LexisNexis Supp. 2006) (defining "[d]elinquent act" as act that would be criminal if committed by adult and providing that "[d]elinquent child" is child under age of eighteen "who has committed a delinquent act and requires guidance, treatment, or rehabilitation"); MASS GEN. LAWS ANN. ch. 119, § 52 (West 2003) (defining "[d]elinquent child" as child between seven and seventeen years old who commits state or local offense and "[y]jouthful offender" as individual between ages of fourteen and seventeen who committed an act considered criminal if committed by adult, provided that other enumerated requirements are met)
  • 2
    • 33947724160 scopus 로고    scopus 로고
    • The children most likely to be targeted in prosecutions for consensual sexual encounters that violate the law because of the age of both the victim and the perpetrator are children already involved in the juvenile justice or child welfare systems. See Barry C. Feld, The Transformation of the Juvenile Court, 75 MINN. L. REV. 691, 697-99 1991, explaining prevalence of relabeling abused and neglected children as delinquent when they engage in any unlawful behavior, regardless of whether such conduct would have been prosecuted were they not already wards of state
    • The children most likely to be targeted in prosecutions for consensual sexual encounters that violate the law because of the age of both the victim and the "perpetrator" are children already involved in the juvenile justice or child welfare systems. See Barry C. Feld, The Transformation of the Juvenile Court, 75 MINN. L. REV. 691, 697-99 (1991) (explaining prevalence of relabeling abused and neglected children as delinquent when they engage in any unlawful behavior, regardless of whether such conduct would have been prosecuted were they not already wards of state).
  • 3
    • 33947712330 scopus 로고    scopus 로고
    • Additionally, youth of color and lesbian and gay youth are disproportionately represented in the prosecution of nonpredatory sex crimes. See Colleen Sullivan, Kids, Courts and Queers; Lesbian and Gay Youth in the Juvenile Justice and Foster Care Systems, 6 LAW & SEXUALITY 31, 38-43 (1996) (finding gay and lesbian youth more likely to have contact with legal system due to social ostracism, family conflicts, and criminalization of certain gay acts);
    • Additionally, youth of color and lesbian and gay youth are disproportionately represented in the prosecution of nonpredatory sex "crimes." See Colleen Sullivan, Kids, Courts and Queers; Lesbian and Gay Youth in the Juvenile Justice and Foster Care Systems, 6 LAW & SEXUALITY 31, 38-43 (1996) (finding gay and lesbian youth more likely to have contact with legal system due to social ostracism, family conflicts, and criminalization of certain gay acts);
  • 4
    • 33947712099 scopus 로고    scopus 로고
    • Building Blocks for Youth, Fact Sheet: Disproportionate Minority Confinement (DMC), http://www.buildingblocksforyouth.org/issues/dmc/ facts_mandate.html (last visited Nov. 28, 2006) stating that although youth of color represent one-third of United States' adolescent population, they represent two-thirds of all incarcerated youths in local detention and state correctional systems
    • Building Blocks for Youth, Fact Sheet: Disproportionate Minority Confinement (DMC), http://www.buildingblocksforyouth.org/issues/dmc/ facts_mandate.html (last visited Nov. 28, 2006) (stating that although youth of color represent one-third of United States' adolescent population, they represent two-thirds of all incarcerated youths in "local detention and state correctional systems"
  • 5
    • 33947719479 scopus 로고    scopus 로고
    • (citing EILEEN POE-YAMAGATA & MICHAEL A. JONES, NAT'L COUNCIL CRIME AND DELINQUENCY, AND JUSTICE FOR SOME 2-3 (2000). available at http://www.buildingblocksforyouth.org/ justiceforsome/jfs.pdf)).
    • (citing EILEEN POE-YAMAGATA & MICHAEL A. JONES, NAT'L COUNCIL CRIME AND DELINQUENCY, AND JUSTICE FOR SOME 2-3 (2000). available at http://www.buildingblocksforyouth.org/ justiceforsome/jfs.pdf)).
  • 6
    • 33947722775 scopus 로고    scopus 로고
    • Twenty-six states specifically require the registration of juvenile sex offenders, although the nature of the registration obligation varies by state. See ARIZ. REV. STAT. ANN. § 13-3821(D, 2001, stating that court may require registration of adjudicated delinquent for specified offenses and that any court-ordered registration obligation continues until individual reaches twenty-five, ARK. CODE ANN. § 9-27-356(a, k, Supp. 2005, providing that court shall order a sex offender screening and risk assessment for adjudicated delinquent and listing factors for court to consider before making a written determination based on clear and convincing evidence as to whether juvenile should be required to register, COLO. REV. STAT. § 16-22-1034, 2005, requiring juveniles adjudicated delinquent due to commitment of act of unlawful sexual behavio
    • Twenty-six states specifically require the registration of juvenile sex offenders, although the nature of the registration obligation varies by state. See ARIZ. REV. STAT. ANN. § 13-3821(D) (2001) (stating that court may require registration of "adjudicated delinquent" for specified offenses and that any court-ordered registration obligation continues until individual reaches twenty-five); ARK. CODE ANN. § 9-27-356(a)-(k) (Supp. 2005) (providing that "court shall order a sex offender screening and risk assessment" for "adjudicated delinquent" and listing factors for court to consider before making a written determination based on clear and convincing evidence as to whether juvenile should be required to register); COLO. REV. STAT. § 16-22-103(4) (2005) (requiring juveniles adjudicated delinquent due to commitment of act of unlawful sexual behavior to register but allowing juvenile to petition court to discontinue registration if certain requirements are met); DEL. CODE ANN. tit. 11, §§ 4120, 4121(a)(4)(b) (2001 & Supp. 2004) (detailing sex offender registration requirements and defining "sex offender" as, inter alia, "juvenile who is adjudicated delinquent" because juvenile committed sexual offense and was charged as an adult); IDAHO CODE ANN. §§ 18-8403, -8407 (2004) (defining "juvenile sex offender" as child who commits sex offense while between ages fourteen and eighteen and imposing registration obligation pursuant to general registration requirements); 730 ILL. COMP. STAT. 150/2-(A)(5), 150/3 (2004) (including "adjudicated juvenile delinquent" in definition of "sex offender" and requiring such persons to register with Department of State Police); IND. CODE ANN. §§ 11-8-8-5(b)(2), 11-8-8-7 (West Supp. 2006) (requiring "sex offender" to register and including in definition of "sex offender" a child at least fourteen years old who has committed sexual offense and court has found likely to repeat such criminal behavior); IOWA CODE ANN. § 692A.2(6) (West Supp. 2006) (including adjudicated juvenile delinquent in category of sex offenders required to register unless court finds "that the person should not be required to register" under sex offender registry provisions); KAN. CRIM. PROC. CODE ANN. § 22-4902(b) (West Supp. 2006) (mandating registration for any individual "adjudicated as a juvenile offender for an act which if committed by an adult would constitute sexually violent crime"); MASS. GEN. ANN. LAWS. ch. 6, §§ 178C, E(e)-(f) (West Supp. 2006) (including "adjudicated . . . youthful offender" or juvenile delinquent in definition of "sex offender" who must register but noting that court has discretion to excuse juvenile of this obligation if it finds that sex offender presents no "risk of reoffense" unless juvenile is labeled "sexually violent predator"); MICH. COMP. LAWS ANN. § 28.724(3)(c), (4)(d), (5) (West 2004) (providing that if juvenile is within jurisdiction of family division of circuit or other enumerated agencies "under an order of disposition for the listed offense," the division or agency must register juvenile); MINN. STAT. ANN. § 243.166(1b)(a)(1)(iii), .166(2) (West Supp. 2006) (requiring person sentenced or "subject to juvenile court disposition order" to register if convicted of specific crimes, including crimes of "criminal sexual conduct"); MISS. CODE ANN. §§ 45-33-23(g), 33-25(1) (West Supp. 2005) (amended 2006) (defining "sex offense" and requiring registration for juveniles "twice adjudicated delinquent for any sex offense"); MONT. CODE ANN. § 41-5-1513(c) (2005) (requiring "delinquent youth" to register if found to have committed sexual offense that would require adult to register); NEV. REV. STAT. ANN. §§ 62F.220, .240, .250 (LexisNexis Supp. 2003) (requiring "adjudicated delinquent[s]" to register but granting court discretion to relieve them of this obligation after holding hearing and finding that child is rehabilitated); N.J. STAT. ANN. § 2C:7-2(a)(1) (West 2005) (requiring registration of all sex offenders, including persons "adjudicated delinquent"); N.C. GEN. STAT. § 14-208.26 (2005) (granting court discretion to order juvenile "adjudicated delinquent" to register if juvenile committed specific sexual offenses and was over eleven years old at time of offense if judge determines juvenile is dangerous to community); OH. REV. CODE ANN. §§ 2950.021(A), .04(A)(2) (LexisNexis 2003) (requiring adjudicated delinquent who has committed "sexually oriented offense that is not a registration-exempt" sexual offense to register and leaving determination as to whether particular offense ...
  • 7
    • 33947732844 scopus 로고    scopus 로고
    • See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 to be codified at various sections of 8, 10, 18, 21, 28, and 42 U.S.C, establishing comprehensive national system for registration of sex offenders and stating purpose of Act is to protect public from sex offenders and offenders against children
    • See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (to be codified at various sections of 8, 10, 18, 21, 28, and 42 U.S.C.) (establishing "comprehensive national system" for registration of sex offenders and stating purpose of Act is to protect public from sex offenders and offenders against children).
  • 8
    • 33947714914 scopus 로고    scopus 로고
    • See, e.g., TENN. CODE ANN. § 39-13-504(a) (2003) (defining age of victim as less than thirteen for aggravated sexual battery); Child Protection Act of 2006, Pub. Ch. 890, § 23 (West, Westlaw through 2006 1st Ex. Sess. & 2d Reg. Sess.) (to be codified at TENN. CODE ANN. § 39-13-531) (defining age of victim as three years or less for aggravated rape of a child).
    • See, e.g., TENN. CODE ANN. § 39-13-504(a) (2003) (defining age of victim as less than thirteen for aggravated sexual battery); Child Protection Act of 2006, Pub. Ch. 890, § 23 (West, Westlaw through 2006 1st Ex. Sess. & 2d Reg. Sess.) (to be codified at TENN. CODE ANN. § 39-13-531) (defining age of victim as three years or less for aggravated rape of a child).
  • 9
    • 33947724040 scopus 로고    scopus 로고
    • See supra note 5 for definitions of sex crimes against children that depend solely on the age of the victim without considering the proximity in age between the victim and perpetrator.
    • See supra note 5 for definitions of sex crimes against children that depend solely on the age of the victim without considering the proximity in age between the victim and perpetrator.
  • 10
    • 33947721029 scopus 로고    scopus 로고
    • See, e.g., TENN. CODE ANN. §§ 39-13-522(b), 40-35-111(b)(1), (e)(1) (2003) (designating rape of child as Class A felony harshly punished under adult criminal sentencing statute).
    • See, e.g., TENN. CODE ANN. §§ 39-13-522(b), 40-35-111(b)(1), (e)(1) (2003) (designating rape of child as Class A felony harshly punished under adult criminal sentencing statute).
  • 11
    • 33947732950 scopus 로고    scopus 로고
    • See, e.g., TENN. CODE ANN. § 37-1-134 (West, Westlaw through 2006 1st Ex. Sess. & 2d Reg. Sess.) (allowing for transfer of cases to adult court where underlying charge is rape of a child, regardless of age of alleged perpetrator, and also including charges of first degree murder, second degree murder, rape, aggravated rape, aggravated robbery, kidnapping, and aggravated kidnapping).
    • See, e.g., TENN. CODE ANN. § 37-1-134 (West, Westlaw through 2006 1st Ex. Sess. & 2d Reg. Sess.) (allowing for transfer of cases to adult court where underlying charge is rape of a child, regardless of age of alleged perpetrator, and also including charges of first degree murder, second degree murder, rape, aggravated rape, aggravated robbery, kidnapping, and aggravated kidnapping).
  • 12
    • 33947720603 scopus 로고    scopus 로고
    • Supreme Court jurisprudence has expanded on the concept of a protected class. Cf. Marc Linder, Dependent and Independent Contractors in Recent U.S. Labor Law: An Ambiguous Dichotomy Rooted in Simulated Statutory Purposelesness, 21 COMP. LAB. L. & POL'Y J. 187, 188 (1999) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992)) (noting Supreme Court's principle that when interpreting scope of statutorily protected class, courts must consider legislature's purpose in providing specific protection to that class).
    • Supreme Court jurisprudence has expanded on the concept of a protected class. Cf. Marc Linder, Dependent and Independent Contractors in Recent U.S. Labor Law: An Ambiguous Dichotomy Rooted in Simulated Statutory Purposelesness, 21 COMP. LAB. L. & POL'Y J. 187, 188 (1999) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992)) (noting Supreme Court's principle that when interpreting scope of statutorily "protected class," courts must consider legislature's purpose in providing specific protection to that class).
  • 13
    • 0347870080 scopus 로고    scopus 로고
    • The legislative debate surrounding the enactment of child rape statutes, as well as sex offender registries, has focused on the victimization of young girls by adult men - situations that often end in homicide. See, e.g., Daniel M. Filler, Making the Case for Megan's Law: A Study in Legislative Rhetoric, 76 IND. L.J. 315, 329-40 (2001) (discussing justifications for Megan's Law put forth during Congressional debates, including stories of child victimization, statistics to show the extent of these crimes, and use of dehumanizing language to describe the perpetrators).
    • The legislative debate surrounding the enactment of child rape statutes, as well as sex offender registries, has focused on the victimization of young girls by adult men - situations that often end in homicide. See, e.g., Daniel M. Filler, Making the Case for Megan's Law: A Study in Legislative Rhetoric, 76 IND. L.J. 315, 329-40 (2001) (discussing justifications for Megan's Law put forth during Congressional debates, including stories of child victimization, statistics to show the extent of these crimes, and use of dehumanizing language to describe the perpetrators).
  • 14
    • 33947713100 scopus 로고    scopus 로고
    • In arguing for support of Megan's Law, Senator Feinstein described how Polly Klass had been kidnapped from her bedroom on October 1, 1993, by a bearded knife-wielding man who tied her up and threatened to slit her friends' throats as her mother slept in a nearby room. 142 CONG. REC. 13,18764 1996, statement of Sen. Feinstein
    • In arguing for support of Megan's Law, Senator Feinstein described how Polly Klass had been "kidnapped from her bedroom on October 1, 1993, by a bearded knife-wielding man who tied her up and threatened to slit her friends' throats as her mother slept in a nearby room." 142 CONG. REC. 13,18764 (1996) (statement of Sen. Feinstein).
  • 15
    • 33947725898 scopus 로고    scopus 로고
    • See Howard N. Snyder, Juvenile Arrests 1999, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Dec. 2000, at 3, http://www.ncjrs.gov/pdffilesl/ojjdp/185236.pdf (reporting 22,900 arrests for forcible rape, sex offenses, and prostitution);
    • See Howard N. Snyder, Juvenile Arrests 1999, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Dec. 2000, at 3, http://www.ncjrs.gov/pdffilesl/ojjdp/185236.pdf (reporting 22,900 arrests for forcible rape, sex offenses, and prostitution);
  • 16
    • 33947716326 scopus 로고    scopus 로고
    • Howard N. Snyder, Juvenile Arrests 2000, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Nov. 2002, at 3, http://www.ncjrs.gov/pdffiles1/ ojjdp/191729.pdf (reporting 23,200 arrests for forcible rape, sex offenses, and prostitution);
    • Howard N. Snyder, Juvenile Arrests 2000, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Nov. 2002, at 3, http://www.ncjrs.gov/pdffiles1/ ojjdp/191729.pdf (reporting 23,200 arrests for forcible rape, sex offenses, and prostitution);
  • 17
    • 33947728520 scopus 로고    scopus 로고
    • Howard N. Snyder, Juvenile Arrests 2001, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Dec. 2003, at 3, http://www.ncjrs.gov/pdffilesl/ojjdp/201370.pdf (reporting 24,000 arrests for forcible rape, sex offenses, and prostitution);
    • Howard N. Snyder, Juvenile Arrests 2001, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Dec. 2003, at 3, http://www.ncjrs.gov/pdffilesl/ojjdp/201370.pdf (reporting 24,000 arrests for forcible rape, sex offenses, and prostitution);
  • 18
    • 33947730201 scopus 로고    scopus 로고
    • Howard N. Snyder, Juvenile Arrests 2002, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Sept. 2004, at 3, http://www.ncjrs.gov/pdffilesl/ojjdp/204608.pdf (reporting 25,620 arrests for forcible rape, sex offenses, and prostitution);
    • Howard N. Snyder, Juvenile Arrests 2002, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Sept. 2004, at 3, http://www.ncjrs.gov/pdffilesl/ojjdp/204608.pdf (reporting 25,620 arrests for forcible rape, sex offenses, and prostitution);
  • 19
    • 33947717654 scopus 로고    scopus 로고
    • Howard N. Snyder, Juvenile Arrests 2003, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Aug. 2005, at 3. http://www.ncjrs.gov/pdffiles1/ojjdp/209735.pdf (reporting 23,940 arrests for forcible rape, sex offenses, and prostitution).
    • Howard N. Snyder, Juvenile Arrests 2003, OFF. JUV. JUST. & DELINQ. PREVENTION JUV. JUST. BULL., Aug. 2005, at 3. http://www.ncjrs.gov/pdffiles1/ojjdp/209735.pdf (reporting 23,940 arrests for forcible rape, sex offenses, and prostitution).
  • 20
    • 33947733062 scopus 로고    scopus 로고
    • See supra note 3 and accompanying text for a discussion of how twenty-six states impose varying degrees of registration requirements for juvenile sex offenders.
    • See supra note 3 and accompanying text for a discussion of how twenty-six states impose varying degrees of registration requirements for juvenile sex offenders.
  • 21
    • 33947721253 scopus 로고    scopus 로고
    • Juvenile sex offender industry statistics reflect a dramatic growth in offender programs funded, at significant expense, through either state contracting or health insurance programs. FRANKLIN E. ZIMRING, AN AMERICAN TRAVESTY: LEGAL RESPONSES TO ADOLESCENT SEXUAL OFFENDING 69-99, 113-16 (2004).
    • Juvenile sex offender industry statistics reflect a dramatic growth in offender programs funded, at significant expense, through either state contracting or health insurance programs. FRANKLIN E. ZIMRING, AN AMERICAN TRAVESTY: LEGAL RESPONSES TO ADOLESCENT SEXUAL OFFENDING 69-99, 113-16 (2004).
  • 22
    • 33947722321 scopus 로고    scopus 로고
    • Id. at 115-16
    • Id. at 115-16.
  • 23
    • 33947715456 scopus 로고    scopus 로고
    • 543 U.S. 551 2005
    • 543 U.S. 551 (2005).
  • 24
    • 33947720806 scopus 로고    scopus 로고
    • See Roper, 543 U.S. at 569-70 (considering three important differences between adults and adolescents).
    • See Roper, 543 U.S. at 569-70 (considering three important differences between adults and adolescents).
  • 25
    • 33947713658 scopus 로고    scopus 로고
    • See id. at 569 (referencing scientific and sociologic studies in identifying differences between youth and adults, including an underdeveloped sense of responsibility (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993))).
    • See id. at 569 (referencing "scientific and sociologic studies" in identifying differences between youth and adults, including "an underdeveloped sense of responsibility" (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993))).
  • 26
    • 18844471958 scopus 로고    scopus 로고
    • William N. Friedrich et al., Normative Sexual Behavior in Children: A Contemporary Sample, PEDIATRICS, Apr. 1998, at e.9, 1-2. http://www.pediatrics.org/cgi/content/full/101/4/e9 (follow Full Text (PDF) hyperlink then Begin manual download hyperlink).
    • William N. Friedrich et al., Normative Sexual Behavior in Children: A Contemporary Sample, PEDIATRICS, Apr. 1998, at e.9, 1-2. http://www.pediatrics.org/cgi/content/full/101/4/e9 (follow "Full Text (PDF)" hyperlink then "Begin manual download" hyperlink).
  • 27
    • 0025656372 scopus 로고    scopus 로고
    • See id. at 6 (indicating children ages ten to twelve engage relatively frequently in sexual behaviors such as self-stimulation and exhibitionism); William Gardner & Jana Herman, Adolescents' AIDS Risk Taking: A Rational Choice Perspective, NEW DIRECTIONS FOR CHILD DEV.: ADOLESCENTS IN THE AIDS EPIDEMIC, Winter 1990, at 17, 17-25 (indicating adolescents' psychological predisposition to take greater risks with their health, particularly their sexual health, as compared to adults and younger children).
    • See id. at 6 (indicating children ages ten to twelve engage relatively frequently in sexual behaviors such as self-stimulation and exhibitionism); William Gardner & Jana Herman, Adolescents' AIDS Risk Taking: A Rational Choice Perspective, NEW DIRECTIONS FOR CHILD DEV.: ADOLESCENTS IN THE AIDS EPIDEMIC, Winter 1990, at 17, 17-25 (indicating adolescents' psychological predisposition to take greater risks with their health, particularly their sexual health, as compared to adults and younger children).
  • 28
    • 33947713212 scopus 로고    scopus 로고
    • See Roper, 543 U.S. at 569 (suggesting children are often unable to grasp their responsibilities, which causes them to make bad decisions).
    • See Roper, 543 U.S. at 569 (suggesting children are often unable to grasp their responsibilities, which causes them to make bad decisions).
  • 29
    • 33947727946 scopus 로고    scopus 로고
    • See ZIMRING, supra note 12, at 52-54 (demonstrating statistical increase of sexual experiences among teens between ages thirteen and seventeen, culminating in fifty-five percent incidence of sexual intercourse by age seventeen, while assuming that much of this activity takes place with same-age or younger peers).
    • See ZIMRING, supra note 12, at 52-54 (demonstrating statistical increase of sexual experiences among teens between ages thirteen and seventeen, culminating in fifty-five percent incidence of sexual intercourse by age seventeen, while assuming that much of this activity takes place with same-age or younger peers).
  • 30
    • 33947729311 scopus 로고    scopus 로고
    • See AM. PSYCHIATRIC ASS'N DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 528 (4th ed. 2002, providing that pedophilia diagnosis requires: A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children generally age 13 years or younger, B. The fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. C. The person is at least age 16 years and at least 5 years older than the child or children in Criterion A. Note: Do not include an individual in late adolescence involved in an ongoing sexual relationship with a 12- or 13-year-old, emphasis added
    • See AM. PSYCHIATRIC ASS'N DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 528 (4th ed. 2002) (providing that pedophilia diagnosis requires: "A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger). B. The fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. C. The person is at least age 16 years and at least 5 years older than the child or children in Criterion A. Note: Do not include an individual in late adolescence involved in an ongoing sexual relationship with a 12- or 13-year-old.") (emphasis added).
  • 31
    • 33947727132 scopus 로고    scopus 로고
    • See ZIMRING, supra note 12, at 65 (stating that sharp decline in child victims as age of juvenile sex offenders increases indicates that opportunity, rather than pedophilia, motivates most juvenile sex offenders).
    • See ZIMRING, supra note 12, at 65 (stating that "sharp decline in child victims" as age of juvenile sex offenders increases indicates that opportunity, rather than pedophilia, motivates most juvenile sex offenders).
  • 32
    • 33947716994 scopus 로고    scopus 로고
    • Note that the laws in each state vary as to whether a preteen or teenager can ever have appropriate sexual exploration. For example, in Kansas, all sexual activity between young people under age sixteen is illegal and must be reported as child abuse unless the reporting entity can show a substantial interest in protecting the privacy of sexually active juveniles. See Aid for Women v. Foulston, 441 F.3d 1101, 1106-07, 1118-20 (10th Cir. 2006) (requiring doctors, teachers, and other individuals to notify state government if they have reason to believe minor below sixteen is engaging in sexual activities unless such action would violate the minor's privacy rights).
    • Note that the laws in each state vary as to whether a preteen or teenager can ever have "appropriate" sexual exploration. For example, in Kansas, all sexual activity between young people under age sixteen is illegal and must be reported as child abuse unless the reporting entity can show a substantial interest in protecting the privacy of sexually active juveniles. See Aid for Women v. Foulston, 441 F.3d 1101, 1106-07, 1118-20 (10th Cir. 2006) (requiring doctors, teachers, and other individuals to notify state government if they have reason to believe minor below sixteen is engaging in sexual activities unless such action would violate the minor's privacy rights).
  • 33
    • 44049114506 scopus 로고    scopus 로고
    • See, e.g., Jeffrey Jensen Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 DEVELOPMENTAL REV. 339, 345-46 (1992) (discussing biological factors that cause adolescents to act recklessly);
    • See, e.g., Jeffrey Jensen Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 DEVELOPMENTAL REV. 339, 345-46 (1992) (discussing biological factors that cause adolescents to act recklessly);
  • 34
    • 0034485063 scopus 로고    scopus 로고
    • Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May be Less Culpable than Adults, 18 BEHAV. SCI. & L. 741, 755-56 (2000) (indicating that incidents of antisocial decision making correlate directly to lack of psychosocial maturity, with psychosocial maturity generally continuing to develop until age nineteen).
    • Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May be Less Culpable than Adults, 18 BEHAV. SCI. & L. 741, 755-56 (2000) (indicating that incidents of antisocial decision making correlate directly to lack of psychosocial maturity, with psychosocial maturity generally continuing to develop until age nineteen).
  • 35
    • 0034306447 scopus 로고    scopus 로고
    • See, e.g., B.J. Casey et al., Structural and Functional Brain Development and its Relation to Cognitive Development, 54 BIOLOGICAL PSYCHOL. 241, 245 (2000) (reporting that development of brain's prefrontal cortex, responsible for memory, attention, and inhibition, continues during adolescence);
    • See, e.g., B.J. Casey et al., Structural and Functional Brain Development and its Relation to Cognitive Development, 54 BIOLOGICAL PSYCHOL. 241, 245 (2000) (reporting that development of brain's prefrontal cortex, responsible for memory, attention, and inhibition, continues during adolescence);
  • 36
    • 0034875926 scopus 로고    scopus 로고
    • Sarah Durston et al., Anatomical MRI of the Developing Human Brain: What Have We Learned?, 40 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 1012, 1016 (2001) (recognizing children show different patterns of activation than adults, recruiting either larger or different brain regions to perform same task).
    • Sarah Durston et al., Anatomical MRI of the Developing Human Brain: What Have We Learned?, 40 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 1012, 1016 (2001) (recognizing children show different patterns of activation than adults, recruiting either larger or different brain regions to perform same task).
  • 38
    • 33947719480 scopus 로고    scopus 로고
    • Anecdotally, the author's own caseload of juvenile sex cases constitutes ninety percent of the juvenile sex offender cases prosecuted in Davidson County (Nashville, Tennessee), and eighty-seven percent of these individuals are identified as prior victims when they undergo psychosexual evaluations.
    • Anecdotally, the author's own caseload of juvenile sex cases constitutes ninety percent of the juvenile sex offender cases prosecuted in Davidson County (Nashville, Tennessee), and eighty-seven percent of these individuals are identified as prior victims when they undergo psychosexual evaluations.
  • 39
    • 0033860750 scopus 로고    scopus 로고
    • Victims of childhood sexual abuse are less likely to be able to identify appropriate sexual behavior. See, e.g, Larry K. Brown et al, Impact of Sexual Abuse on the HIV-Risk-Related Behavior of Adolescents in Intensive Psychiatric Treatment, 157 AM. J. PSYCHIATRY 1413, 1414-15 2000, reporting that adolescents with history of sexual abuse have less impulse control, less knowledge about HIV, and three times greater incidence of inconsistent condom use than their peers
    • Victims of childhood sexual abuse are less likely to be able to identify appropriate sexual behavior. See, e.g., Larry K. Brown et al., Impact of Sexual Abuse on the HIV-Risk-Related Behavior of Adolescents in Intensive Psychiatric Treatment, 157 AM. J. PSYCHIATRY 1413, 1414-15 (2000) (reporting that adolescents with history of sexual abuse have less impulse control, less knowledge about HIV, and three times greater incidence of inconsistent condom use than their peers).
  • 40
    • 33947726017 scopus 로고    scopus 로고
    • See Feld, supra note 2, at 697-99 (maintaining that children in the custody of state department of child welfare, either because of dependency or delinquency, are more frequently prosecuted than other children).
    • See Feld, supra note 2, at 697-99 (maintaining that children in the custody of state department of child welfare, either because of dependency or delinquency, are more frequently prosecuted than other children).
  • 42
    • 33947713101 scopus 로고    scopus 로고
    • 441 F.3d 1101 (10th Cir. 2006).
    • 441 F.3d 1101 (10th Cir. 2006).
  • 43
    • 33947728300 scopus 로고    scopus 로고
    • Aid for Women, 441 F.3d at 1108.
    • Aid for Women, 441 F.3d at 1108.
  • 44
    • 33947730963 scopus 로고    scopus 로고
    • Id
    • Id.
  • 45
    • 33947726693 scopus 로고    scopus 로고
    • Id. (quoting Op. Kan. Att'y Gen. No. 2003-17, at 6 (June 18, 2003)).
    • Id. (quoting Op. Kan. Att'y Gen. No. 2003-17, at 6 (June 18, 2003)).
  • 46
    • 33947730544 scopus 로고    scopus 로고
    • Id. at 1121
    • Id. at 1121.
  • 47
    • 33947723220 scopus 로고    scopus 로고
    • Id. at 1117
    • Id. at 1117.
  • 48
    • 33947725900 scopus 로고    scopus 로고
    • Aid for Women, 441 F.3d at 1127 n.8 (Herrera, J. dissenting) (citations omitted).
    • Aid for Women, 441 F.3d at 1127 n.8 (Herrera, J. dissenting) (citations omitted).
  • 50
    • 33947730440 scopus 로고    scopus 로고
    • See ZIMRING, supra note 12, at 52-54 stating that it is problematic to criminalize consensual sexual behavior among seventeen-year-olds because fifty-five percent of them report having sex
    • See ZIMRING, supra note 12, at 52-54 (stating that it is problematic to criminalize consensual sexual behavior among seventeen-year-olds because fifty-five percent of them report having sex).
  • 51
    • 33947715901 scopus 로고    scopus 로고
    • 287 U.S. 112 1932
    • 287 U.S. 112 (1932).
  • 52
    • 33947720359 scopus 로고    scopus 로고
    • Gebardi, 287 U.S. at 118.
    • Gebardi, 287 U.S. at 118.
  • 53
    • 33947713322 scopus 로고    scopus 로고
    • See id. at 118 n.1 explaining that version of 18 U.S.C. § 398 current at time of case provided penalty for any person who knowingly transporte[d, or cause[d] to be transported, or aid[ed] or assis[ted] in obtaining transportation for, or in transporting, in interstate or foreign commerce, any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose
    • See id. at 118 n.1 (explaining that version of 18 U.S.C. § 398 current at time of case provided penalty for "any person" who knowingly "transporte[d], or cause[d] to be transported, or aid[ed] or assis[ted] in obtaining transportation for, or in transporting, in interstate or foreign commerce ... any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose").
  • 54
    • 33947725023 scopus 로고    scopus 로고
    • Gebardi
    • The other statute at issue in was 18 U.S.C. § 88, which punished a conspiracy of two or more persons to commit any offense against the United States. Id. at 120
    • The other statute at issue in Gebardi was 18 U.S.C. § 88, which punished a conspiracy of two or more persons "to commit any offense against the United States." Id. at 120.
  • 55
    • 33947721967 scopus 로고
    • noting that the conspiracy statute was enacted in, well before the Mann Act
    • See id. (noting that the conspiracy statute was enacted in 1867, well before the Mann Act).
    • (1867) See id
  • 56
    • 33947720358 scopus 로고    scopus 로고
    • Id. at 123
    • Id. at 123.
  • 57
    • 33947727947 scopus 로고    scopus 로고
    • See supra note 3 and accompanying text indicating that most jurisdictions impose criminal liability on juvenile for sex offenses based on the same statutes designed to protect minors as a class.
    • See supra note 3 and accompanying text indicating that most jurisdictions impose criminal liability on juvenile for sex offenses based on the same statutes designed to protect minors as a class.
  • 58
    • 33947731313 scopus 로고    scopus 로고
    • For example, the legislative history of the federal Megan's Law repeatedly references violent acts perpetrated on children by adults. See Megan's Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996) (codified as amended at 42 U.S.C. § 14071 (2000 & Supp. 2003)) (authorizing release of information about sex offenders); 142 Cong. Rec. 8, 10664-65 (1996) (providing statement of Sen. Gorton that Megan's Law was named for Megan Kanka, a child raped and murdered by her next-door neighbor, an adult male and previously convicted sex offender); Filler, supra note 9, at 329, 346 (discussing legislative debates of Megan's Law).
    • For example, the legislative history of the federal Megan's Law repeatedly references violent acts perpetrated on children by adults. See Megan's Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996) (codified as amended at 42 U.S.C. § 14071 (2000 & Supp. 2003)) (authorizing release of information about sex offenders); 142 Cong. Rec. 8, 10664-65 (1996) (providing statement of Sen. Gorton that Megan's Law was named for Megan Kanka, a child raped and murdered by her next-door neighbor, an adult male and previously convicted sex offender); Filler, supra note 9, at 329, 346 (discussing legislative debates of Megan's Law).
  • 59
    • 33947725266 scopus 로고    scopus 로고
    • The age of consent varies across the country and may be a different age in different contexts (e.g, statutory rape provisions, For example, the age of consent in Tennessee is thirteen, whereas it is sixteen in Kansas. Compare KAN. STAT. ANN. § 21-3503 (West, Westlaw through 2005 Reg. Sess, providing that specific, enumerated acts with child fourteen years old and over but under sixteen is crime of [i]ndecent liberties with a child) with TENN. CODE ANN. § 39-13-504(a, 2003, defining [a]ggravated rape of a child as forcible sexual act where victim is under age three, and Child Protection Act of 2006, Pub. Ch. 890, § 23 West, Westlaw through 2006 1st Ex. Sess. & 2d Reg. Sess, to be codified at TENN. CODE ANN. § 39-13-531, defining [r]ape of a child as forcible sexual act with child under age thirteen
    • The age of consent varies across the country and may be a different age in different contexts (e.g., statutory rape provisions). For example, the age of consent in Tennessee is thirteen, whereas it is sixteen in Kansas. Compare KAN. STAT. ANN. § 21-3503 (West, Westlaw through 2005 Reg. Sess.) (providing that specific, enumerated acts with child fourteen years old and over but under sixteen is crime of "[i]ndecent liberties with a child") with TENN. CODE ANN. § 39-13-504(a) (2003) (defining "[a]ggravated rape of a child" as forcible sexual act where victim is under age three), and Child Protection Act of 2006, Pub. Ch. 890, § 23 (West, Westlaw through 2006 1st Ex. Sess. & 2d Reg. Sess.) (to be codified at TENN. CODE ANN. § 39-13-531) (defining "[r]ape of a child" as forcible sexual act with child under age thirteen).
  • 60
    • 33947712442 scopus 로고    scopus 로고
    • See supra note 1 for a discussion of state statutes defining delinquent acts as those which violate adult criminal statutes.
    • See supra note 1 for a discussion of state statutes defining delinquent acts as those which violate adult criminal statutes.
  • 61
    • 33947729313 scopus 로고
    • U.S. 112
    • Gebardi v. United States, 287 U.S. 112, 119-120 (1932).
    • (1932) United States , vol.287 , pp. 119-120
    • Gebardi1
  • 62
    • 33947732301 scopus 로고    scopus 로고
    • Common sense cannot be excluded from the protected class analysis. It is hard to imagine that when a legislature designs a criminal statute, providing that no child under a given age is capable of consent to sexual activity in any context, the legislators also envision that a child under that age would be subject to prosecution for sexual contact
    • Common sense cannot be excluded from the protected class analysis. It is hard to imagine that when a legislature designs a criminal statute, providing that no child under a given age is capable of consent to sexual activity in any context, the legislators also envision that a child under that age would be subject to prosecution for sexual contact.
  • 63
    • 33947728989 scopus 로고    scopus 로고
    • Courts may choose to distinguish rape provisions that rely on the age of the victim with more traditional rape statutes that require proof of force or coercion. For example, in Tennessee: Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish the act; (2) The sexual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent; (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or, 4) The sexual penetration is accomplished by fraud. TENN. CODE ANN. § 39-13-503a, 2003, Additionally, situations in which bodily harm occurs or a weapon is used would still remain subject to prosecution under aggravated rape statutes. See Child
    • Courts may choose to distinguish rape provisions that rely on the age of the victim with more traditional rape statutes that require proof of force or coercion. For example, in Tennessee: Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish the act; (2) The sexual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent; (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or, (4) The sexual penetration is accomplished by fraud. TENN. CODE ANN. § 39-13-503(a) (2003). Additionally, situations in which bodily harm occurs or a weapon is used would still remain subject to prosecution under aggravated rape statutes. See Child Protection Act of 2006, Pub. Ch. 890, § 23 (West, Westlaw through 2006 1st Ex. Sess. & 2d Reg. Sess.) (to be codified at TENN. CODE ANN. § 39-13-531) (defining aggravated rape).
  • 64
    • 33947720032 scopus 로고    scopus 로고
    • This burden shifting is also imperative in these cases because it helps to properly identify a victim where one exists. Current application of the law subjects both children engaged in sexual activity to prosecution. Because most district attorney's offices consider it a conflict to prosecute both actors, they often choose victims based on other factors, including gender
    • This burden shifting is also imperative in these cases because it helps to properly identify a "victim" where one exists. Current application of the law subjects both children engaged in sexual activity to prosecution. Because most district attorney's offices consider it a conflict to prosecute both actors, they often choose victims based on other factors, including gender.
  • 65
    • 33947726813 scopus 로고    scopus 로고
    • Most states have an aggravated battery or rape of a child provision where the age of the victim is a strict liability element; mistake of fact or ignorance of the law is not a defense
    • Most states have an aggravated battery or rape of a child provision where the age of the victim is a strict liability element; mistake of fact or ignorance of the law is not a defense.
  • 66
    • 33947732182 scopus 로고    scopus 로고
    • A classic example of a strict liability mens rea offense is that of statutory rape. Because society has articulated a strong interest in protecting minors from sexual activity, most states do not allow the defendant accused of this offense to use ignorance of the alleged victim's age as an excuse. See, e.g., State v. Yanez, 716 A.2d 759, 760 (R.I. 1998) (holding that statutory rape is a strict liability crime). See generally Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 AM. U. L. REV. 313 (2003), for a comprehensive examination of statutory rape analysis.
    • A classic example of a strict liability mens rea offense is that of statutory rape. Because society has articulated a strong interest in protecting minors from sexual activity, most states do not allow the defendant accused of this offense to use ignorance of the alleged victim's age as an excuse. See, e.g., State v. Yanez, 716 A.2d 759, 760 (R.I. 1998) (holding that statutory rape is a strict liability crime). See generally Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 AM. U. L. REV. 313 (2003), for a comprehensive examination of statutory rape analysis.
  • 67
    • 33947722896 scopus 로고    scopus 로고
    • See, e.g., Collins v. State, 691 So. 2d 918, 923 (Miss. 1997) (stating that allowing mistake of age defense to statutory rape charge contradicts legislative intent); Vasquez v. State, 622 S.W.2d 864, 866 (Tex. Crim. App. 1981) (recognizing where statutory requirements are met, the prosecutor is not required to show appellant knew victim was younger than seventeen).
    • See, e.g., Collins v. State, 691 So. 2d 918, 923 (Miss. 1997) (stating that allowing "mistake of age" defense to statutory rape charge contradicts legislative intent); Vasquez v. State, 622 S.W.2d 864, 866 (Tex. Crim. App. 1981) (recognizing where statutory requirements are met, the prosecutor is not required to show appellant knew victim was younger than seventeen).
  • 68
    • 33947725493 scopus 로고    scopus 로고
    • See Collins, 691 So. 2d at 923 (stating that knowledge or ignorance of child's age is irrelevant and cannot serve as defense to statutory rape charge).
    • See Collins, 691 So. 2d at 923 (stating that knowledge or ignorance of child's age is irrelevant and cannot serve as defense to statutory rape charge).
  • 69
    • 33947732407 scopus 로고    scopus 로고
    • See, e.g., Pino v. Szuch, 408 S.E.2d 55, 57-58 (W. Va. 1991) (discussing common law rule of sevens as it applies to concept of negligence).
    • See, e.g., Pino v. Szuch, 408 S.E.2d 55, 57-58 (W. Va. 1991) (discussing common law rule of sevens as it applies to concept of negligence).
  • 70
    • 33947716876 scopus 로고    scopus 로고
    • Id. at 57
    • Id. at 57.
  • 71
    • 33947718488 scopus 로고    scopus 로고
    • Id. at 57-58
    • Id. at 57-58.
  • 72
    • 33947715789 scopus 로고    scopus 로고
    • See Jennifer Ann Drobac, Developing Capacity: Adolescent Consent at Work, at Law, and in the Sciences of the Mind, 10 U.C. DAVIS J. JUV. L. & POL'Y 1, 14 (2006) (explaining that [t]he more mature the frontal cortex, 'the area of sober second thought,' the better teenagers can reason, control their impulses, and make considered judgments (quoting Sarah Spinks, Adolescent Brains are Works in Progress: Here's Why, http://www.pbs.org/wgbh/pages/frontline/ shows/teenbrain/work/ adolescent.html (last visited Nov. 28, 2006)));
    • See Jennifer Ann Drobac, "Developing Capacity": Adolescent "Consent" at Work, at Law, and in the Sciences of the Mind, 10 U.C. DAVIS J. JUV. L. & POL'Y 1, 14 (2006) (explaining that "[t]he more mature the frontal cortex, 'the area of sober second thought,' the better teenagers can reason, control their impulses, and make considered judgments" (quoting Sarah Spinks, Adolescent Brains are Works in Progress: Here's Why, http://www.pbs.org/wgbh/pages/frontline/ shows/teenbrain/work/ adolescent.html (last visited Nov. 28, 2006)));
  • 73
    • 0034056125 scopus 로고    scopus 로고
    • L.P. Spear, The Adolescent Brain and Age-Related Behavioral Manifestations, 24 NEUROSCIENCE & BIOBEHAVIORAL REVIEWS 417, 422 (2000) (discussing increased risk-taking behavior common among adolescents).
    • L.P. Spear, The Adolescent Brain and Age-Related Behavioral Manifestations, 24 NEUROSCIENCE & BIOBEHAVIORAL REVIEWS 417, 422 (2000) (discussing increased risk-taking behavior common among adolescents).
  • 74
    • 33947714554 scopus 로고    scopus 로고
    • See Spear, supra note 61, at 421 (noting that at least half of adolescents have sex without contraception, arguably making this behavior normal part of adolescent development).
    • See Spear, supra note 61, at 421 (noting that at least half of adolescents have sex without contraception, arguably making this behavior normal part of adolescent development).
  • 75
    • 33947729092 scopus 로고    scopus 로고
    • See supra note 55 and accompanying text for a discussion of appropriate circumstances to impose strict criminal liability.
    • See supra note 55 and accompanying text for a discussion of appropriate circumstances to impose strict criminal liability.
  • 76
    • 0346300496 scopus 로고    scopus 로고
    • Sexual petting or intercourse is not abnormal in preteen and teenage populations. See, e.g., John S. Santelli et al., Adolescent Sexual Behavior: Estimates and Trends from Four Nationally Representative Surveys, 32 FAM. PLAN. PERSP. 156, 160-61 (2000) (showing high percentages of sexually active teenagers).
    • Sexual petting or intercourse is not abnormal in preteen and teenage populations. See, e.g., John S. Santelli et al., Adolescent Sexual Behavior: Estimates and Trends from Four Nationally Representative Surveys, 32 FAM. PLAN. PERSP. 156, 160-61 (2000) (showing high percentages of sexually active teenagers).
  • 77
    • 33947714329 scopus 로고    scopus 로고
    • See id. at 160 tbl.3 (showing that approximately half of high school adolescents age fifteen to seventeen have engaged in sexual intercourse).
    • See id. at 160 tbl.3 (showing that approximately half of high school adolescents age fifteen to seventeen have engaged in sexual intercourse).
  • 78
    • 33947726227 scopus 로고    scopus 로고
    • Almost all sexual behavior of children under the age of fifteen is criminalized across the United States, yet behaviorists are well aware that preteens and teenagers regularly engage in sexual behavior. See, e.g., Friedrich, supra note 17, at 6 (discussing normative sexual behavior in children ages two to twelve and examining the influence of various demographic variables on this behavior).
    • Almost all sexual behavior of children under the age of fifteen is criminalized across the United States, yet behaviorists are well aware that preteens and teenagers regularly engage in sexual behavior. See, e.g., Friedrich, supra note 17, at 6 (discussing normative sexual behavior in children ages two to twelve and examining the influence of various demographic variables on this behavior).
  • 79
    • 33947728178 scopus 로고    scopus 로고
    • See ZIMRING, supra note 12, at 46 stating that police and courts rarely enforce proscriptions against consensual sexual activity among similarly aged children
    • See ZIMRING, supra note 12, at 46 (stating that police and courts rarely enforce proscriptions against consensual sexual activity among similarly aged children).
  • 80
    • 33947717789 scopus 로고    scopus 로고
    • See Feld, supra note 2, at 697 (noting that judicial discretion can have disproportionate impact on poor, minority, and female juveniles).
    • See Feld, supra note 2, at 697 (noting that judicial discretion can have "disproportionate impact on poor, minority, and female juveniles").
  • 81
    • 33947725492 scopus 로고    scopus 로고
    • See Wayte v. United States, 470 U.S. 598, 607 (1985) (commenting that broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review).
    • See Wayte v. United States, 470 U.S. 598, 607 (1985) (commenting that "broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review").
  • 82
    • 33947714107 scopus 로고    scopus 로고
    • Id. at 608 (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)); accord Michelle A. Gail, Comment, Prosecutorial Discretion, Twenty-Sixth Annual Review of Criminal Procedure, 85 GEO. L.J. 983, 985-86 (1997) (discussing how Equal Protection Clause applies to recommendation of leniency in criminal trials);
    • Id. at 608 (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)); accord Michelle A. Gail, Comment, Prosecutorial Discretion, Twenty-Sixth Annual Review of Criminal Procedure, 85 GEO. L.J. 983, 985-86 (1997) (discussing how Equal Protection Clause applies to recommendation of leniency in criminal trials);
  • 83
    • 33947725267 scopus 로고    scopus 로고
    • Lara Beth Sheer, Comment, Prosecutorial Discretion, Twenty-Seventh Annual Review of Criminal Procedure, 86 GEO. L.J. 1353, 1356-57 (1998) (noting judiciary's responsibility to protect individuals from selective prosecution, which violates constitutional right to equal protection, and from vindictive prosecution, which denies due process).
    • Lara Beth Sheer, Comment, Prosecutorial Discretion, Twenty-Seventh Annual Review of Criminal Procedure, 86 GEO. L.J. 1353, 1356-57 (1998) (noting judiciary's responsibility to protect individuals from selective prosecution, which violates constitutional right to equal protection, and from vindictive prosecution, which denies due process).
  • 84
    • 33947718909 scopus 로고    scopus 로고
    • See BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT §§ 4.72-.73, at 206-07 (2d. ed. 2005, considering prosecutions motivated by racial or political animus, or political or personal gain, Sheer, supra note 70, at 157-57 (citing selective and vindictive prosecution as limits to prosecutor's discretion, The ethical codes also prohibit selective prosecution. See, e.g, ABA STANDARDS FOR CRIMINAL JUSTICE 3-3.1(b, 1993, available at http://www.abanet.org/crimjust/standards/ pfunc_blk.html (mandating that prosecutors indiscriminately and properly exercise discretion, see also MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS' ETHICS §11.03, at 309-10 (3d. ed. 2004, reviewing AMERICAN LAWYER'S CODE OF CONDUCT R. 9.2 (1980) prohibiting prosecutorial favoritism
    • See BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT §§ 4.72-.73, at 206-07 (2d. ed. 2005) (considering prosecutions motivated by racial or political animus, or political or personal gain); Sheer, supra note 70, at 157-57 (citing selective and vindictive prosecution as "limits to prosecutor's discretion"). The ethical codes also prohibit selective prosecution. See, e.g., ABA STANDARDS FOR CRIMINAL JUSTICE 3-3.1(b) (1993), available at http://www.abanet.org/crimjust/standards/ pfunc_blk.html (mandating that prosecutors indiscriminately and properly exercise discretion); see also MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS' ETHICS §11.03, at 309-10 (3d. ed. 2004) (reviewing AMERICAN LAWYER'S CODE OF CONDUCT R. 9.2 (1980) prohibiting prosecutorial favoritism or discrimination and comparable District of Columbia provision regarding selective prosecution).
  • 85
    • 33947728521 scopus 로고    scopus 로고
    • See ABA STANDARDS FOR CRIMINAL JUSTICE 3-3.1(b, stating that prosecutor shall not base decision to investigate or prosecute on race, religion, sex, sexual preference, or ethnicity or any other improper considerations, These claims can pose a challenge to prove, putting a significant onus on the defense. To obtain discovery on a selective prosecution claim, a defendant must offer some evidence of discriminatory effect and discriminatory intent. See United States v. Armstrong, 517 U.S. 456, 464 1996, recognizing that claimant must demonstrate that the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose, quoting Wayte, 470 U.S. at 599, In order to prove selective prosecution, a defendant must put forth clear evidence against the presumption that the prosecution was in good faith. Armstrong, 517 U.S. at 465. The Court has set a high t
    • See ABA STANDARDS FOR CRIMINAL JUSTICE 3-3.1(b) (stating that prosecutor shall not base decision to investigate or prosecute on "race, religion, sex, sexual preference, or ethnicity" or any "other improper considerations"). These claims can pose a challenge to prove, putting a significant onus on the defense. To obtain discovery on a selective prosecution claim, a defendant must offer some evidence of discriminatory effect and discriminatory intent. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (recognizing that "claimant must demonstrate that the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose'" (quoting Wayte, 470 U.S. at 599)). In order to prove selective prosecution, a defendant must put forth clear evidence against the presumption that the prosecution was in good faith. Armstrong, 517 U.S. at 465. The Court has set a high threshold of proof for these cases and gives a "presumption of regularity" to prosecutorial decisions: "[T]he presumption of regularity supports" their prosecutorial decisions and, "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." In the ordinary case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Id. at 464 (citations omitted);
  • 86
    • 33947712443 scopus 로고    scopus 로고
    • accord Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2125 (1998) (noting how a prosecutor's decision to bring a charge or accept a guilty plea is virtually incapable of review).
    • accord Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2125 (1998) (noting how a prosecutor's decision to bring a charge or accept a guilty plea is virtually incapable of review).
  • 87
    • 33947720033 scopus 로고    scopus 로고
    • See, e.g., Kolender v. Lawson, 461 U.S. 352,358 (1983) (striking statute for vagueness because it vested virtually complete discretion in the police).
    • See, e.g., Kolender v. Lawson, 461 U.S. 352,358 (1983) (striking statute for vagueness because it vested "virtually complete discretion" in the police).


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