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Ethical Treatment for All Youth

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By Elizabeth Garfinkle, University of California Berkeley
Published in California Law Review
January 2003, Vol. 91 Issue 1, pp. 163-208.

Despite the scientific community's understanding that "[c]hildhood sex play is not psychologically harmful under ordinary circumstances and is probably a valuable psychosocial experience in developmental terms," every state in the nation has an age-of-consent law making sexual activity below a certain age a crime. In about half of all states, this includes sexual activity between age-peers under the age of consent, which is usually eighteen. In 60% of states, lewd-conduct laws make all sexual activity illegal under the age of fourteen. Since every state now has a minimum age well over twelve, according to the above research, the majority of children could be guilty of a sexual offense, in addition to being irreparably harmed victims in Congress' eyes. And in many states, and age-of-consent violation triggers a Megan's Law registration requirement.

...Unsurprisingly, in a number of studies, the majority of adolescents found guilty of sexual offenses used no force at all. Of the ones that did use force, only 4% to 31%, depending on the study and the age of the victim, involved the use of some sort of weapon. The lack of a clear distinction between consensual and nonconsensual illegal sexual behavior results in an often arbitrary distinction between perpetrators and victims, with the majority of perpetrators being low-income boys, most of whom are already being observed by the juvenile justice system and thus subject to extra scrutiny...(pp. 186-187)

Part I of this Comment examined how only the most horrifically violent sexual offenses were invoked by the creators of Megan's Law. The Comment postulated that lawmakers were motivated to protect children from murders that were especially scary because they involved sex; they were not motivated by the numerous relatively minor sex crimes that fall under Megan's Laws. However, even if a registration requirement were narrowly tailored and triggered only by murder or seriously violent assaults, the only kind of crime with a lower recidivism rate than sex offenses is murder. Thus, even a notification requirement that was only triggered by the kinds of horrible crimes invoked during the Megan's Law debates would still not be effective in preventing those crimes because so few of these offenders pose a danger of reoffending. (p. 200)


Children who commit sexual offenses generally have the same vulnerabilities and are in the same need of protection as the child victims whom the proponents of Megan's Laws claim to protect. But Megan's Laws have the unique propensity to gravely harm some children in the hope of protecting an unknown few. Many child sex offenders are victims of sexual abuse themselves. Many more engage in common sexual behavior, sometimes healthy, sometimes inappropriate, that they will most likely learn to manage. Megan's Laws stigmatize and isolate these children, limiting their opportunities for normal growth and exacerbating the kinds of vulnerabilities that lead to future criminality, both sexual and nonsexual. When lawmakers vociferously declared that children were in more need of protection than convicted sex offenders, they never indicated that some of the sex offenders they were targeting were themselves vulnerable children.

The American criminal justice system has long been a battleground between the warring goals of punitive retribution and utilitarian crime prevention. In many aspects, retribution is winning to such an extent that payments for crimes are exacted throughout the offender's life. Mandatory minimums have exponentially increased time behind bars for certain drug violations. In many states, felons forfeit their political rights even upon release. And more states are enacting automatic transfer to adult court for some juvenile offenses. Juveniles fortunate enough to remain in the juvenile justic system have generally been protected from these increased consequences. Now Megan's Laws have dismantled this last protective holdout. By applying Megan's Laws to juvenile adjudications, states throw out a century of juvenile justice jurisprudence and scholarship to protect an even older tradition of fear about childhood sexuality. In so doing, lawmakers perpetrate irreparable damage to the very children they claim to protect. (p. 205)