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LEGISLATIVE UPDATE

Federal
Georgia
Kansas
Vermont

HR 4472 passes despite opposition by child health organizations

July 25, 2006 -- HR 4472 was quietly passed by the House and agreed to by the Senate under suspension of the rules (i.e., without debate).
Descibed as a bill to protect children and combat gang violence, it places juveniles on the national public sex offender registry along with adults, despite opposition from numerous child health and justice organizations (listed below). The American Psychological Association had urged the public to educate their  representatives about the "devastating impact these provisions will have on the lives of many children and youth," but to no avail.

The bill redefines sex offenders to include not only juveniles convicted or adjudicated for certain coercive sexual behaviors, but also juveniles 14 and over who are convicted or adjudicated for consensual sexual contact with another juvenile who is under 13, or who is more than 4 years younger than themselves. These youth are to be:
  • included in a new national public registry of sex offenders
  • required to produce a DNA sample
  • subject to electronic monitoring for the duration of their supervised release
  • included on the registry and monitored electronically for the rest of their lives if the violation is/was a second offense or if the other juvenile is under 12.
(For the bill text go to www.thomas.gov and search by bill number, entering HR 4472. Click on the last version of the bill, then click on "Subtitle A" to see that part where it says juveniles are included.)

Elizabeth Garfinkle wrote in
California Law Review that such 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...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.
--Garfinkle, E. (2003). Coming of Age in America: The Misapplication of Sex-Offender Registration and Community Notification Laws to Juveniles. California Law Review, 91(1), 163-208.

The following organizations strongly opposed the inclusion of juveniles on a national registry when this and similar bills (HR 3132 and S 1086) were proposed:

Alaska Public Defender Agency
American Academy of Child and Adolescent Psychiatry
American Orthopsychiatric Association
American Psychiatric Association
American Psychological Association
Association for the Treatment of Sexual Abusers
California Professional Society on the Abuse of Children
Child Welfare League of America
Children & Adults with Attention-Deficit/Hyperactivity Disorder
Childrenís Defense Fund
Clinical Social Work Federation
Correctional Association of New York
Council for Children with Behavioral Disorders
Council of Juvenile Correctional Administrators
Criminal and Juvenile Justice Project, University of Chicago Law School
Davidson County, TN Public Defenderís Office
Edwin F. Mandel Legal Aid Clinic
Federation of Families for Childrenís Mental Health
Franklin County, Ohio Public Defenderís Office
GMB, LLC
International Community Corrections Association
Justice Policy Institute
Juvenile Justice Center of Suffolk University Law School
Juvenile Justice Coalition of Ohio
Lake County, IL Public Defenderís Office
Law Office of the Cook County, IL Public Defender
Law Office of the Montgomery County, OH Public Defender, Juvenile Division
Learning Disabilities Association of America
Legal Aid Society of New York, Juvenile Rights Division
Legal Services for Children
Mid-Atlantic Juvenile Defender Center
Mississippi Youth Justice Project
National Alliance on Mental Illness
National Association for Childrenís Behavioral Health
National Association of School Psychologists
National Association of Social Workers
National Juvenile Defender Center
National Juvenile Justice and Delinquency Prevention Coalition
National Juvenile Justice Network
National Legal Aid & Defender Association
National Mental Health Association
National Network for Youth
Neighborhood Defender Service of Harlem
New York Juvenile Justice Coalition
Northeast Juvenile Defender Center
School Social Work Assoc. of America
Society for Research in Child Development
Southern Poverty Law Center
Southwest Juvenile Defender Center
Tourette Syndrome Association
(See letters of opposition here)

In collective letters to Congress, these organizations wrote:


Given the low risk that juvenile sex offenders will re-offend; the lack of safeguards to ensure confidentiality, correct errors, or remove individuals from this list; and the damage associated with being 'blacklisted' for life for a youthful offense, public safety and good policy dictate that the national sex offender registry specifically exclude persons who committed an offense prior to having attained the age of 18 years.

The billís scope is such that a young adolescent, who was adjudicated a delinquent for non-violent sexual contact with playmate, would face what amounts to a life sentence of the most degrading public humiliation.


See:


Georgia

March 30, 2006
(from Atlanta attorney B.J. Bernstein) -- The Georgia General Assembly passed a Romeo and Juliet law which says that when a teen is 14 or 15 and engages in any consensual sexual act with someone within four years of age and no older than 18 years of age, the older teen can only be charged with a misdemeanor and is not required to register as a sexual offender.

If the sexual act is sodomy and it is consensual then the covered ages are 13, 14, or 15 when they engage in consensual oral sex with another teen within four years of age and no older than 18 years of age. The age differential for oral sex was done because of the CDC study showing the high numbers of 13 year olds engaging in oral sex and the desire not to trigger the possibility of 17 year olds receiving the new 25 year minimum in prison for that act.

The bill is now awaiting the Governor's signature and when signed by him, goes into effect on July 1, 2006. This provision is part of an entire law rewriting the sex offender laws in Georgia.

Jan. 25, 2006 (Atlanta Journal-Constitution)-- Teenagers 13 through 16 who are prosecuted in adult court for rape or aggravated crimes of sodomy, child molestation and sexual battery would face a mandatory sentence of at least 25 years under House Bill 1059. The bill also might punish some teens who engage in sexual activity with each other, critics say. They hasten to say they don't condone teen sex but know it happens. If the bill passes, a youth of 13, 14, 15 or 16 who engages in mutual sexual activity with a child under 14 could be prosecuted for aggravated sexual crimes, tried as an adult and face a minimum 25-year sentence. The age of the younger child makes the crime an "aggravated" one. More details (offsite link)


Kansas

April 19, 2006 -- Kansas' chief law enforcement officer misread the law, a federal judge in Wichita ruled Tuesday. In a case watched across the nation, U.S. District Judge J. Thomas Marten ruled that Kansas health care providers should retain discretion in deciding what teenage sexual activities they report to the state as abuse. Attorney General Phill Kline had wanted most sexual contact involving children under age 16 reported. More details (offsite link)

Feb. 14, 2006 -- Kansas Atty. Gen. Phill Kline argues that if you are under that age, you canít legally consent to have sex, no matter how adamantly you feel you can. If you canít consent, sex constitutes child abuse because it is inherently harmful.
More details (offsite link)

Feb. 8, 2006 -- We searched the state's sex offender website and found dozens of children, their faces, crimes and addresses plastered on the Internet for all the world to see... In some cases that includes children as young as ten.
More details (offsite link)

Jan. 31, 2006 -- A federal trial opened here Monday over whether a Kansas law prohibiting virtually all sexual activity by people under age 16 means health care professionals and educators must report such behavior to state authorities.
More details (offsite link)


Vermont

March 16, 2006 -- The Vermont House of Representatives passed H-856 which makes it a felony  for teenagers to engage in consensual "lewd or lascivious conduct" or consensual sex with someone under age 15, even if they are the same age. A first offense would result in one to fifteen years in prison, and subsequent offenses would result in three years to life in prison. Lighter punishment would be given to those under 17 who engage in such conduct with a 14 year old: no more than 6 months in prison.  The bill in now in the Senate. It can be viewed at 
http://www.leg.state.vt.us .

A Senate committee has taken up a House-passed bill that seeks to decriminalize sex between consenting teenagers, as long as they are both at least 15 and within three years in age. "We didn't want to subject those kids to being a sex offender that would be put on the registry for life," Rep. Thomas DePoy, R-Rutland, said. Sen. Richard Sears, D-Bennington, said he knows of cases where young lives have been ruined as a high school romance results in a permanent criminal record and dashed college hopes. Vermont's age of consent under current law is 16 and a 17-year-old having consensual sex with a 15-year-old can be prosecuted for sexual assault on a minor.  More details (offsite link)


See also:

E-Advocate's
Quick List of Federal Legislation Affecting Sex Offenders


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U.S. House of Representatives

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