Girl, 13, and her boyfriend, 12, both labelled sex offenders

[Kitsune]

I had thought that the courts had already dismissed the charges but I was wrong

http://www.dailymail.co.uk/news/article ... other.html

Girl, 13, and her boyfriend, 12, are both labelled sex offenders after having consensual sex with each other

The two Ogden, Utah minors had consensual sex in 2003, which resulted in a pregnancy
The girl wants the juvenile conviction overturned, claiming the sex shouldn't qualify as a crime because it doesn't for 16 or 17-year-olds who have sex with a peer and she should be treated equally
Utah justices acknowledged they were struggling with the concept that the girl could be both victim and offender
They compared the 'peculiar consequence' to dueling, when two people shoot each other at the same time

By Helen Pow

PUBLISHED: 14:16 EST, 26 September 2013 | UPDATED: 15:53 EST, 26 September 2013

Utah Supreme Court justices have deemed a 13-year-old girl and a 12-year-old boy both sex offenders and victims for having sex with each other.

The Ogden girl and her boyfriend were each found guilty of violating a state law that prohibits sex with someone under age 14, after the 2003 encounter which resulted in the girl becoming pregnant.

The unnamed girl, who is now 23, is asking the high court to overturn the juvenile conviction, claiming the consensual sex shouldn't qualify as a crime because it doesn't for 16 or 17-year-olds who have sex with someone in their own age group, and she has a right to be treated equally under the law.

Oral arguments on the motion began this week and on Tuesday, the justices acknowledged they were struggling with the concept that the girl could be both victim and offender.

'The only thing that comes close to this is dueling,' said Associate Chief Justice Michael Wilkins, referring to two people who take 20 paces and then shoot each other.

According to the Salt Lake Tribune, Chief Justice Christine Durham labelled the predicament a 'peculiar consequence' and wondered if legislators had intended it.

State authorities filed delinquency - the term used for juvenile convictions - petitions in July 2004.

These alleged the boyfriend and girlfriend had each committed sexual abuse of a child, a second-degree felony if committed by an adult.

The girl appealed the petition, saying that because her boyfriend was the same age as her she shouldn't be penalized.

Children aged 14 or 15 can be charged with unlawful conduct with a minor if they have sex with a peer, but mitigation renders the offense a misdemeanor.

But for juveniles under 14, there is no mitigation as the law deems them incapable of consenting to sex.

A juvenile court judge denied the motion brought by the girl and the Utah Court of Appeals last December upheld the judge's refusal to dismiss the allegation, saying the law had to protect minors from each other as well as from older teens and adults.

The girl then appealed to the state Supreme Court.

During Tuesday's hearing, assistant Utah attorney general Matthew Bates argued that the law was designed to prevent sex with children who are 13 and younger, even if the other person is in the same age group.

He said legislators were sending a message with the law that sex with or among children is unacceptable.

However, Randall Richards, the girl's attorney, claims prosecuting children under a law meant to protect them doesn't make sense.

'A child (victim) cannot also be a perpetrator in the exact same act,' Richards said, according to the Tribune.

The Utah Supreme Court will issue a ruling at a later date.

[Knife]

In our rush to condemn pedophiles and sexual predators, we kind of left some loop holes. Poor kids.

[Kitsune]

In our rush to condemn pedophiles and sexual predators, we kind of left some loop holes. Poor kids.

And we have some judges without brains to at least think of the whys behind the law.

[Johonebesus]

In our rush to condemn pedophiles and sexual predators, we kind of left some loop holes. Poor kids.

No, this was not a loophole in a law solely intended to protect children from adults. According to the article:

[emphasis added]
...
Children aged 14 or 15 can be charged with unlawful conduct with a minor if they have sex with a peer, but mitigation renders the offense a misdemeanor.

But for juveniles under 14, there is no mitigation as the law deems them incapable of consenting to sex.

A juvenile court judge denied the motion brought by the girl and the Utah Court of Appeals last December upheld the judge's refusal to dismiss the allegation, saying the law had to protect minors from each other as well as from older teens and adults.

...

During Tuesday's hearing, assistant Utah attorney general Matthew Bates argued that the law was designed to prevent sex with children who are 13 and younger, even if the other person is in the same age group.

He said legislators were sending a message with the law that sex ... among children is unacceptable.

Evidently the goal was to forbid kids under the age of sixteen from being sexually active. This is the result of the conservatives' desire to outlaw all sexual acts they think are sinful and their unwillingness to use anything other than punishment and fear to change undesirable behavior.

[Alyeska]

The intent behind laws of this sort is to protect children because they are not capable of consent. But by charging them with a crime, you are directly saying they CAN consent. Which destroys the very theory and foundation of statutory sex laws in the first place.

If they can be held guilty of a crime because they made a choice, then they are capable of consent. And if they are capable of consent, there was no fucking crime.

[Alyrium Denryle]

... It still does not make sense. I know crimes like statutory rape are Strict Liability offenses where Mens Rea does not apply, but that fundamentally presumes that as a matter of law, the young party cannot consent, while the older party has a duty to know the law and the fact of the younger party's age. So, while Mens Rea does not apply, it is a bit like a crime resulting from negligence.

If two minors both cannot consent, then by definition... how the fuck can they be held liable? For fuck's sake, "sending a message" presumes that 12 year olds can weigh the consequences of their actions, but they cannot as a matter of law, otherwise, they would be able to consent.

UGH

[Cycloneman]

Evidently the goal was to forbid kids under the age of sixteen from being sexually active. This is the result of the conservatives' desire to outlaw all sexual acts they think are sinful and their unwillingness to use anything other than punishment and fear to change undesirable behavior.

I think that's a bit uncharitable.

On "outlaw all sexual acts they think are sinful": the idea that the government should not be in the bedroom is a recent one. While I personally prefer the idea, I have to admit that I have difficulty articulating arguments I will buy that people who hold the other position - that the government should be in the bedroom - are systematically wrong. There are socially deleterious effects to some kinds of sex. Sex between minors is a prominent example - low age of first sex seems to have long-term negative consequences, and there's teen pregnancy too (which occurred in this case, lest we forget). Banning socially deleterious things is one of the government's main jobs. We do it even when the "victim" consents: buying drugs, engaging in prostitution, failing to wear a seatbelt, or gambling, for example, are all crimes in many jurisdictions despite the "victims" readily consenting. The judge also gave the example of dueling.

Then there is your second point: unwillingness to use anything other than punishment and fear. Is this accurate? Utah has one of the lowest teen pregnancy rates in the USA, coming in at 8. Is this purely due to teenagers avoiding having sex for fear of going to prison? I sincerely doubt it. If it was, I would be truly shocked at the efficacy. So the idea that they are "unwilling" to use other methods is clearly false (either they are willing, or this method is so effective as to render additional efforts largely superfluous).

I don't agree with making this criminal, but you're wildly distorting the opposing case.

Does anyone know the actual charge? Googling suggests Rape of a child (76-5-402.1), but that carries a mandatory term of at least 25 years, which seems... uh... a little extreme.

[EnterpriseSovereign]

However, Randall Richards, the girl's attorney, claims prosecuting children under a law meant to protect them doesn't make sense.

'A child (victim) cannot also be a perpetrator in the exact same act,' Richards said, according to the Tribune.

The very idea that someone could be both the perpetrator and the victim is utterly absurd, the only party that seems to recognise this is the attorney.

I cannot help but be reminded of this case which has the same premise:
Link

[TheHammer]

One can only hope the Utah supreme court shows some common sense on the matter. The entire premise behind labeling someone a "sex offender" is because of the notion that that their practices are predatory. And in many cases the person is branded for life. In situations such as this, it is clearly not the case.

I don't neccessarily take issue with the premise of keeping such an act to be a crime, but between peers it certainly shouldn't be labeled a "sex crime" even if sex takes place. After all, if two peers get in a fist fight resulting in injuries, they are not mutually charged with child abuse. Make those caught doing it go through a sexual awareness program, and educate them on things, but jail time, fines, and applying the stigma of being a "sex offender" is far too harsh.

[cadbrowser]

I guess I'm still confused as to how the law can implicitly state that children under 14 cannot conscent mutually to sex. Here, clearly, they did.

I've seen it several times even on this site that underage children (implied as under 18) are incapable of conscenting to mutual sex. I belive tho, that in the context for which this statement was made was regarding religious customs/belief, rape, or pedophilia.

So, maybe there is something here that I am missing?

Here thou, I don't agree that they should've been given the title of "sex offender". The punishment here doesn't fit the crime. And really, was there a crime commited? I guess I'm having trouble understanding that as well.

[Lord Revan]

What you're missing is the difference between consent and meaningfull consent, a child can say "yes" but that "yes" has no meaning as a child doesn't have the ability to give meaningfull (or informed) consent.

This is the basis of statutory rape charges, since a child cannot give meaningful consent that means sex with a child is as per defination rape.

though in this case it seems like conservatives trying to force their morality on people.

[cadbrowser]

Because they can't fully comprehend the rammifications of their actions? That's where the line seems to be drawn if I understand what you and a few others are saying.

Ok, I went and used my google-fu and looked up informed consent. I think I understand it now.

though in this case it seems like conservatives trying to force their morality on people.

How so? It is the law, right? IMHO, it seems that they didn't consider the probability that two 12 or 13 yo would say, "Hey, lets have sex!".

[Flameblade]

How so? It is the law, right? IMHO, it seems that they didn't consider the probability that two 12 or 13 yo would say, "Hey, lets have sex!".

Oh, they did consider that -- it's just that their (literally) Neolithic ideology considers this an evil act and one that is deserving of harsh punishment.

[Alyrium Denryle]

Because they can't fully comprehend the rammifications of their actions? That's where the line seems to be drawn if I understand what you and a few others are saying.

That is exactly what we are saying. As another example, it is the reason we dont charge 7 year olds with crimes. They are not legally capable of forming the requisite mens rea. However, statutory rape does not have a mens rea requirement. It does not require that an adult knowingly have sex with an 13 year old, only that it occur. It is thus a Strict Liability Offense. You can think of it like this. The adult has a duty to be sure that they are not making a mistake of fact when they have sex with a minor. If they fail to do this, ignorance is no excuse. This itself creates a sort of quasi mens rea fulfilling status. A good example of this involves trafficking in parts of endangered species. If I, for example, run a clothing manufacturing facility and periodically order tanned animal hide, I have a duty to find out what species and locations my suppliers have been obtaining their skins from. If I get a shipment of leather from say... an endangered species of monkey and I dont find out and report it to the authorities but instead put it into manufactured goods, I am in big trouble if the feds find out.

As a result, really strange legal territory is entered when mens rea is not required for an offense to be committed, because a child has no way of forming even that weird sort of intent. They cannot consent--as a matter of law--to the commission of the very offense they are accused of committing. This gets even more odd, because there is a Diminished Capacity mitigation defense that can be used when the perp is 14, but not 13, why this is I have no idea because I have not dug through the statutes (which I can do) and the caselaw (which I have no way of knowing how to do, because I am not a lawyer and do not have ready access to Westlaw databases).

At least they did not charge them as adults, because that would be batshit crazy.

[cadbrowser]

Oh, they did consider that -- it's just that their (literally) Neolithic ideology considers this an evil act and one that is deserving of harsh punishment.

It seems that the article and those mentioned in it aren't quite so sure, see below (emphasis mine):

According to the Salt Lake Tribune, Chief Justice Christine Durham labelled the predicament a 'peculiar consequence' and wondered if legislators had intended it.

and

Oral arguments on the motion began this week and on Tuesday, the justices acknowledged they were struggling with the concept that the girl could be both victim and offender.

At least this is how I'm reading it. Its as if they were considering the other angles first (rape, pedophelia, etc) and then decided, when this particular instance came up in thier face, that they went ahead with making these two children examples and insisted that the Law was intended to prevent underage sex even if both parties were the same age. To which, I would agree to the assesment that it was the religious right enforcing their views of morality on the two, but only after the fact.

It would be very interresting in how they rule on this now that she is fighting the previous ruling.

SNIP EXCELLENT FOLLOW-UP FOR INFORMED CONSENT

It would be interresting to find out what those statutes are in regards to the 13 vs 14 age. I wonder if perhaps it may be just that they don't really have a reason; maybe they just picked a number that sounded good?

[Kitsune]

It would be interresting to find out what those statutes are in regards to the 13 vs 14 age. I wonder if perhaps it may be just that they don't really have a reason; maybe they just picked a number that sounded good?

I doubt that politicians did real research here before deciding age groups.

[cadbrowser]

I don't think I can be as dismissive as that Kitsune. There are laws for each jurisdiction (in the US anyway) that clearly identify the age of consent laws. Most range between 14 - 18, where a few are as low as 12 or as high as 21.

Granted these aren't the same as "informed consent" which has stricter meaning for young children (as I'm learning).

So, I don't agree that they didn't do reasearch; I am of the opinion that they didn't contrive (as stated before) of the plausibility/possibility of two 12/13 y.o children actually getting together to have sexual relations.

[Tinkerbell]

I just don't see what good this does now...

This isn't a case of someone harming another person and needing to make it right. Honestly, getting pregnant at thirteen is traumatizing and awful is so many ways, I have a very time getting behind the idea of ruining the rest of her life over it. How about instead of shaming children for exploring/discovering their sexuality, we teach them how to make decisions that are right for them, and how to be safe while they're making those decisions?

Grrrrrrr.

[AniThyng]

How so? It is the law, right? IMHO, it seems that they didn't consider the probability that two 12 or 13 yo would say, "Hey, lets have sex!".

Oh, they did consider that -- it's just that their (literally) Neolithic ideology considers this an evil act and one that is deserving of harsh punishment.

If that were the case there would not be exemptions for a 14 y/o having sex with another 14 y/o. Your anti-religious bias is blinding you.

In any case, it seems quite clear that secular laws consider sex between a 13 y/o and a 18 y/o to be an evil act deserving of harsh punishment. "Neolithic" ideology probably doesn't give a toss as long as permission was sought from the parents so YMMV...

[Kitsune]

I don't think I can be as dismissive as that Kitsune. There are laws for each jurisdiction (in the US anyway) that clearly identify the age of consent laws. Most range between 14 - 18, where a few are as low as 12 or as high as 21.

Granted these aren't the same as "informed consent" which has stricter meaning for young children (as I'm learning).

So, I don't agree that they didn't do reasearch; I am of the opinion that they didn't contrive (as stated before) of the plausibility/possibility of two 12/13 y.o children actually getting together to have sexual relations.

Back in the 1980s, at least a certain percentage of kids were sexually active at 13 (or at least claimed to be). I don't think it was a high percentage but it was not an insignificant number. Interestedly, reading up, it actually sounds like kids today are having sex later than my generation.
http://www.guttmacher.org/pubs/FB-ATSRH.html



In a state with tens to hundreds of thousands of teenagers (Utah population is around 2.9 million), you have to expect it will occur. Do we want it to be a crime for sex between fifteen year old and a thirteen year old to be a crime either?

[AniThyng]

In a state with tens to hundreds of thousands of teenagers (Utah population is around 2.9 million), you have to expect it will occur. Do we want it to be a crime for sex between fifteen year old and a thirteen year old to be a crime either?

Interestingly enough I'd suspect opinions will diverge radically once you start playing around with the ages and genders. To wit:

13 y/o boy and 16 y/o girl = guy probably wanted it anyway, good for him!

16 y/o boy and 13 y/o girl = getting iffier...

17 y/o boy and 12 y/o girl = yep, almost a pedo!

19 y/o boy and 15 y/o girl = PEDO ALERT.

And so on.

[cadbrowser]

How about instead of shaming children for exploring/discovering their sexuality, we teach them how to make decisions that are right for them, and how to be safe while they're making those decisions?

You know, that is exactly the mindset that I had with my children. After my divorce and remarry; I brought that same concept to her kids. At first she was a bit apprehensive but, in a relatively short time she saw the benefits of that line of thought and how it has opened up the lines of communication between her and her daughter (who is almost 16 now). The result has also brought them closer together. It seems her dad has also come around to accepting this line of thinking and I can only hope that they also become closer as well.

In a state with tens to hundreds of thousands of teenagers (Utah population is around 2.9 million), you have to expect it will occur.

I really don't see the logic in that statement. I expect it to occur anywhere at any given time for the simple fact that the human nature of exploration (sexual) and the biological desire for procreation require it. Unless you are just assuming for the sake of probability (more children = more opportunities), but I am unaware if there is any reliable data that could justify that claim.

---

There have been two mentions of this "Neolithic" ideaology that I am having a difficult time understanding why it is being thrown around. Based on my limited research (google-fu warning), English common law had set the age to between 10-12 (in Delaware 1880 it was set to 7!) based on the female menstral cycle (which the US copied). It wasn't until almost the turn of that century that female reformers and advocates of purity pushed US legislation to raise the minimum age to at least 16. I think their ultimate goal was to get it raised to 18. Which by the 1920's almost all states complied. Granted, during that time it was based on morality; however, in modern times the focus has shifted to welfare and the idea for preserving the right to innocence.LINK

Again, these ideas; if I understand them correctly all wanted to deal with the way marriage was conducted back then. So, in reality, two underaged children exploring their sexuality (as they naturally will) must be taken into consideration and the laws reflect a standard that fits.

Personally, I think the law needs to stay out of this and retract those types of laws that criminalize NATURAL behavior. I wholeheartedly agree with Tinkerbell in that all parents need to teach their children to be responsible, because nature will win out every time.

---

In any case, it seems quite clear that secular laws consider sex between a 13 y/o and a 18 y/o to be an evil act deserving of harsh punishment.

And deservedly so. An 18 y/o has no business messing with a 13 y/o. NONE.

[Kitsune]

Interestingly enough I'd suspect opinions will diverge radically once you start playing around with the ages and genders. To wit:

13 y/o boy and 16 y/o girl = guy probably wanted it anyway, good for him!

16 y/o boy and 13 y/o girl = getting iffier...

17 y/o boy and 12 y/o girl = yep, almost a pedo!

19 y/o boy and 15 y/o girl = PEDO ALERT.
And so on.

Pedophile is the wrong term for a nineteen year old and a fifteen year old to be sexual active together.
Even if the government labels them as such, it is the wrong term.
Pedophilia is mostly describing a full adult (over 20 or so) with a child age twelve or below.
Best term for what you describe is Ephebophilia actually although cautious about using that term as well.

My position does not differ defending on the respective age / sex balance or even if they are same sex or not.
Generally, I think we should be pretty forgiving of kids and teenagers of around the same age block.
I think the lines of "forgiveness" should be widened a lot although I am not arguing that there should be no lines.

In a state with tens to hundreds of thousands of teenagers (Utah population is around 2.9 million), you have to expect it will occur.

I really don't see the logic in that statement. I expect it to occur anywhere at any given time for the simple fact that the human nature of exploration (sexual) and the biological desire for procreation require it. Unless you are just assuming for the sake of probability (more children = more opportunities), but I am unaware if there is any reliable data that could justify that claim.

If you have a relatively small city, of 10,000 to 50,000, based on the number of youths, you can expect that the city government will not have reasonably common incidents of occurrence.

US census website unfortunately is down. Looking at the Canadian Census, about 2% of the population is 12 or 13 years of age. Utah will probably be a bit higher because Mormons tend to have a lot of kids but think we can still do calculations based on this.
~2,855,000 total
~57,100 teenagers 12 or 13 years old
~3% of females and ~5 of males have had sex by 13
That means that ~860 females and ~1,430males have had sex by 13 years old.
Going to have to expect that such occurrences will happen with a reasonable frequency in your state just based on population.

[cadbrowser]

Pedophile is the wrong term for a nineteen year old and a fifteen year old to be sexual active together.
Even if the government labels them as such, it is the wrong term.
Pedophilia is mostly describing a full adult (over 20 or so) with a child age twelve or below.
Best term for what you describe is Ephebophilia actually although cautious about using that term as well.

Source?

My source says:

The term pedophilia is commonly used to refer to any sexual interest in minors below the legal age of consent, regardless of their level of physical, mental, or psychological development.

Now, based on the information as to what the legal age of consent is; that can vary by State/Jurisdiction. I still don't agree that it is "ok" (morally) for a 18+ to be sexually involved with anyone under 18. Period.

I'd also like to see the 19 y/o male confront the father of a 15 y/o female and convince him that he didn't do anything wrong.

I find no use of the terminology "full adult", so please indicate where that definition is and that says 20+.

I found a related term called age of majority wherein for the US it is conceptualized (legally) as 18; for Canada it is 18-19.

Generally, I think we should be pretty forgiving of kids and teenagers of around the same age block.

As far as criminalization, I agree with you here. But, like Tinkerbell indicated, it needs to be left to the due dilligence of the parents to raise responsible and well informed children. If anything they can learn to wait until they are more mature, as well as explore sexuality with safty. Not being blinded by the call of nature, I will settle for knowledge and safety.

Here again though, you do have to consider both parties. Take for instance the father of the 15 y/o girl that had sex with the 19 y/o man. I would find it hard to believe that anyone would disagree with me if that father either wanted to blow this guy's kneecaps off for touching his "little girl" or at least press charges for statutory rape.

Going to have to expect that such occurrences will happen with a reasonable frequency in your state just based on population.

So, you are under the impression that 13 y/o boys and girls have sex with each other based on population mass? Because they claim they do? I may be being a bit obtuse here but I'm not sure I buy it. By your logic then New York City alone has ~8,000,000 people in it. If we take those same percentages and numbers you get:

160,000 teenagers 12/13 y/o
4,800 females and 8,000 males have had sex by 12 or 13.

I would venture to guess that of those 13 y/o asked or polled (what have you) that they were asked if they had ever had sex. I doubt they were asked if it was with someone their own age or not. So I'm not sure if your claims can be substantiated by throwing numbers around.

[Kitsune]

Source?

http://en.wikipedia.org/wiki/Pedophilia
As a medical diagnosis, pedophilia or paedophilia is a psychiatric disorder in persons 16 years of age or older typically characterized by a primary or exclusive sexual interest toward prepubescent children (generally age 11 years or younger, though specific diagnostic criteria for the disorder extends the cut-off point for prepubescence to age 13).[1][2][3][4] An adolescent who is 16 years of age or older must be at least five years older than the prepubescent child before the attraction can be diagnosed as pedophilia.[1][2]

I'd also like to see the 19 y/o male confront the father of a 15 y/o female and convince him that he didn't do anything wrong.

Now, I did not say that in US Society that the older individual (usually male but not exclusively) did nothing wrong. What I am arguing is that it should not be considered pedophilia. I would find it acceptable to punish the older indivdiaul athough I think being labeled as a sex offender for life is extreme.

So, you are under the impression that 13 y/o boys and girls have sex with each other based on population mass? Because they claim they do? I may be being a bit obtuse here but I'm not sure I buy it. By your logic then New York City alone has ~8,000,000 people in it. If we take those same percentages and numbers you get:

160,000 teenagers 12/13 y/o
4,800 females and 8,000 males have had sex by 12 or 13.

I would venture to guess that of those 13 y/o asked or polled (what have you) that they were asked if they had ever had sex. I doubt they were asked if it was with someone their own age or not. So I'm not sure if your claims can be substantiated by throwing numbers around

http://www.guttmacher.org/pubs/journals/3430402.html
Partnerships with same-age or younger males were less common among females aged 13 or younger than among older females (16% vs. 28-37%—Table 2).

If you base it on those numbers, 768 females in the New York City area are in sexual relationships with a male of their age or younger or 138 in Utah. It would be something like this every couple of years because you pass through that cycle.

Problem with the law that the writers did not consider is what about a fourteen year old having sex with a thirteen year old. My understanding of the law is that the fourteen year odl would be a branded as a sex offender but is that really a smart way to base the laws?