Moral Outrage

Consensual teenaged sexual experimentation is an activity that is labeled by most states as child sexual abuse, child molestation, sexual assault and statutory rape. Under most state laws it is a felony crime, accompanied by sex offender registration. The legislative belief is that these relationships are coercive and unhealthy even if they are consensual. –By Laurie PetersonMost local governments send teenagers to high school from freshman to senior year, ranging in age from 14 to 19 on average. Ironically, these same state governments make it explicitly illegal for these peers to engage in some, if not all, forms of consensual sexual relations. These adolescents are taught a safe sex message in school, even as under aged minors, who cannot legally engage in sexual intercourse. These minors in turn have a tendency to equate safe sex with legal sex and they are wrong, sometimes with lifelong consequences. While it is the general intent of statutory rape laws across the nation to discourage underage sexual activity, is it the equal intent of these laws to subject these young offenders to a lifetime of stigma by registration? In light of the seriousness of a felony record and registration requirements it is time to review the parameters of these laws and the consequences they have for youth at the dawn of their adult lives.

Decades ago when these laws were first pieced together the outcome was much different for a statutory rape conviction than it is today. The outcome during that time was a criminal record unencumbered by the release of CORI reports and registration requirements. After their conception, sexual assault laws were coupled with new legislation that further compounded a conviction. Federal legislation expanded the release of criminal records reports under the Fair Credit Reporting Act (15 USC 1681g, et seq.) used by employers and subsequently resulted in the direct loss of employment for young offenders. In addition, Federal laws like the Wetterling Act, Megan’s Law and The Adam Walsh Act have now mandated lengthy registration periods and online posting of information under the title of “Sex Offender or Offender Against Children” and these newer laws have resulted in a social stigma and a private shame for young offenders that could not possibly have been anticipated by legislators when the original sexual assault laws were created. Today sex crime convictions equate directly with job loss and employment opportunities, possible residency restrictions, and a general inability to provide for a future family through gainful employment and parental involvement (volunteering, coaching, and chaperoning) in the lives of future children. Registration laws at their heart were aimed at violent and predatory sex offenders, not teenage love affairs or casual nights of experimentation. It is time to restore balance to the system by removing these young men and women from the registry for their consensual sex acts as teenagers.

A significant number of teenagers are engaging in all types of sex acts well below the age of consent. Sexual assault laws generally define penetration as any object, however slight, that penetrates the sex organ of another. Many teens are involved in acts of mutual groping that could fall under the legal definition of penetration, without actually having sexual intercourse, and thus would be guilty of statutory rape. One shudders to think what the outcome would be if there was a nationwide attempt to crack down on this ‘heinous’ criminal activity inside the walls of our high schools. It’s hard to imagine the courts would have time to prosecute anything else. While this group of registered sex offenders represents the minority of those registered, there are still substantial numbers of young men and women forced to register for consensual sex as adolescents and society should not overlook them.

Complicating statutory rape law review is the associated label of ‘sex offender’. Families are bombarded with messages daily assailing sex offenders as a group. They are touted as the ‘worst of the worst’, untreatable monsters who will repeat their crimes. With such an ugly stain attached to the sex offender label, there is little doubt as to why politicians back off from endorsing any sort of meaningful and necessary reform to sex offender laws. Perception being nine tenths of the law, all registered sex offenders must be child molesters. The truth it seems is rarely reported. The truth is that those guilty of statutory rape would not have been guilty of a crime at all in a specified number of days (when the underage partner turned the legal age). It underscores the reality that maturity cannot be legislated in black and white terms. Those convicted of statutory rape are rarely repeat offenders, though there are little studies to prove this because these young adults rarely serve prison time and most studies are conducted on those who have been paroled since prison sentences indicate a more serious offense. Even those guilty of other types of sex crimes are not as likely to repeat these offenses as society has been led to believe. The US Dept of Justice issued a study in 2003 that followed just under 10,000 convicted sex offenders released from prison in 1994. Less than 400, approx 3.5% were returned to prison for a repeat sex offense within the first three years following release. This hardly represents the ‘high rate of recidivism’ that is loudly proclaimed by those looking to advance their political standing with tough new laws aimed at registered sex offenders.

Interestingly, women’s and children’s rights advocates have asserted that a level of coercion exists based on the age difference alone between two consenting teens and thus a sexual assault has occurred regardless of the consent given. These powerful lobbying groups, along with victim’s rights advocates, are unwilling to acknowledge that an 18, 19 or 20 year old can be both an adolescent and an adult simultaneously and lack criminal intent when it comes to sexual relations with a younger partner. Their belief is that these individuals are undeniably adults and therefore should know better than to engage with an underage peer under all circumstances. While the potential age difference represents an aspect of the debate that makes many uncomfortable, some criminal penalties for statutory rape do not have to be removed in order to accomplish reform. Allowing judicial discretion in sentencing for this age group, as well as removing the registration requirements for a first time offense, would suffice. These organizations continue to strongly oppose these changes alleging that these ‘mature adults’ use their older age status to manipulate younger individuals into relationships with them. These groups refuse to acknowledge that the younger partner may have wanted, provoked or encouraged this attention and they disregard younger partners who insist they are not a victim. In fact the very idea is dismissed as blaming the victim or oneself if the older person in the sexual relationship is not held completely and solely accountable for the sex acts that occurred. These advocacy groups continue to hinder the potential reform of statutory rape laws by not allowing any open dialogue that can weigh and balance the aspects of accountability and maturity on both sides of this contentious subject.

The current imbalance of accountability is most evident in the strict liability nature of statutory rape laws. Statutory rape laws are defined as strict liability crimes in 33 states. Strict liability means that the prosecution does not have to prove criminal intent, only that the criminal act occurred. Victim advocacy groups stress the need for the ‘strict’ protection offered by these laws in an attempt to save young teenage individuals from their own poor decisions. There is no such protection afforded to older teenage individuals in these situations. Consequently, the impact of this type of law is that there have been mentally innocent people convicted of statutory rape with a peer they believed to be ‘of age’. It is not a defense in court to say that the underage minor misrepresented their age in most states. The result of this strict liability is that innocent minds that did not intend to commit a crime are irrelevant before a court of law. There is little push to change this imbalance because it is poorly understood by the public and once an individual is labeled a sex offender, they are no longer part of mainstream society, regardless of the nature of their crime. Young adults and older teens have painfully little life experience and may not realize that they are being lied to by someone they perceive as a peer. Even worse, they have no concept of strict liability crimes and their automatic guilt under the law because they have barely entered adulthood and are lacking the critical knowledge that these circumstances exist.

This transition into adulthood should not be overlooked when reviewing statutory rape laws. For most teens this is a complicated and tumultuous time, of still being ‘a child’ while simultaneously being allowed several ‘adult’ privileges. In NH, as in most states, the first adult privilege our children receive is a driver’s license at age 16. Their adult privileges continue to grow until the age of 21 when they are legally able to buy and consume alcohol. In legal terms, I would argue NH has defined the age range of 16 to 21 as the age of transition for our youth into adulthood. Even insurance companies regard the age of maturity as 25 years old when deciding on premium decreases. This age range makes notoriously poor decisions, as most of us know from our own personal experiences. There is scientific research to support the assertion that the age range for adolescence is markedly longer than previously regarded, lasting well into the early twenties. Do people really need to be reminded that teens and young adults have bad judgment without necessarily having criminal intent? A great number of our own actions during those transition years could be considered regrettable to say the least. It is easy to imagine how our own lives may have been different if we were subject to prosecution for consensual experimentation.

As the wife of an offender who is registered for life over a night of consensual sex as a teen, I can tell you this is an outrage. My husband and children have been shunned by others in the neighborhood because the perception is that all sex offenders are child molesters. My husband is not alone. Genarlow Wilson of Atlanta, Georgia is currently serving a ten year prison sentence for receiving consensual oral sex at the age of 17, from a 15 year old peer, and will be registered for life upon his release.1 A quick search on the internet will confirm that millions of people around America have rallied around Genarlow to voice their disgust in his sentence and to call for his release. The media and public outrage in Genarlow’s situation is rare, and most do not get the same support. Joshua Widner is another young man who is sitting in prison for ten years, convicted of the same crime as Genarlow and it has sparked no outrage.2 Perhaps it is because there was a slightly larger age gap in Joshua Widner’s case than there was in Genarlow Wilson’s case. The net result is still the same: a young man in prison for a mandatory ten years over a consensual sex act. Some of these teens, labeled by the law as a victim, are now married to their partners who are registering as sex offenders and considered their abusers by our criminal justice system. Take, for example, NH’s own Jody Barry and his wife. Jody is registered as a sex offender and posted online for life. Kearstin is the victim, and the mother of their four children. It’s been more than ten years since they were teenagers, but their lives are still shadowed by the law. She was fourteen, pretending to be older; he was eighteen and believed she told him the truth. There is no relief in the law for this couple and there is no relief for anyone else convicted under consensual circumstances either.

Until statutory rape laws and associated registration laws are examined there will be no relief. In reviewing these laws and registration requirements, it is necessary to remember that registration laws are not about punishment; they are about public safety. The US Supreme Court ruled in SMITH V. DOE (01-729) 538 U.S. 84 (2003) that sex offender registration was not a punitive sanction, establishing that these laws were not intended to be used as punishment. Registration laws pass constitutional muster because they were determined by the Supreme Court to be civil regulations imposed by the government for a narrowly defined interest in protecting the public safety. The original intent of registration law was narrowly defined in the beginning but it has grown to encompass perfectly natural sex acts amongst adolescents. It is perfectly acceptable, psychologically speaking, to be aroused by your own social group during your teen years. Those who fall in this category do not pose an immediate threat. The offenders who ought to cause concern are those who are abnormally aroused by abnormal things. Labeling these young men and women as sex offenders for consensual sex acts inflicts immeasurable trauma on these young individuals as they contemplate their new reality as child molesters in society. Thoughts of suicide are common for those convicted under these circumstances. Even though they did not molest children, the title sex offender is synonymous and the psychological damage of this label is huge. There exists a widely recognized problem of childhood sexual abuse. However, those unfairly labeled as child molesters continue to go unrecognized and grouped in with a broad range of registered sex offenders that no one would dare defend.

In trying to remedy the problem created by registering teens and young adults as sex offenders for consensual sexual activity, state’s have three options: allow petitions for removal, craft the laws to make this activity legal, or continue to make these acts illegal and do not couple convictions with registration laws for a first offense. It is time to realize that having the wrong people on the sex offender registry risks hurting the whole community in many ways.
It cannot be stressed enough that the inclusion of those who have lesser, non-violent and singular offenses on the registry is a benefit to those with violent and predatory offenses. These dangerous offenders are harder to spot and track when everyone is included under the same umbrella of lifetime registration and online posting. Further, it unfairly lowers the property values for citizens living near a registered offender, so it would make sense to keep the list of registered offenders narrow and specific. Lastly, our tax dollars are best spent registering and monitoring high risk offenders who have repeated their crimes, or have shown excessive violence, or have multiple prepubescent victims, rather than squandering resources on consensual sex acts engaged in by pubescent adolescents that lack the criminal intent of an older adult grooming a young teen for sexual purposes. Comprehensive review and subsequent reform is long overdue.

Notes

1 Genarlow Wilson’s appeals are ongoing. He was originally charged with the aggravated rape of a 17 year old girl and aggravated child molestation for oral sex with a 15 year old girl. He was acquitted of the rape charge by a jury. The year following his conviction and mandatory 10 year sentence for oral sex, the Georgia Legislature changed this statute to a misdemeanor offense. It was not made retroactive to those already imprisoned. After appealing his original convictions to the Georgia Supreme Court, who denied a hearing on the matter, his Atty. B.J. Bernstein filed a writ of habeas corpus to the District Court in Humphrey v. Wilson, No. S07A1481. Judge Wilson (no relation) ordered that Genarlow Wilson be freed because his continued incarceration constituted cruel and unusual punishment. The Attorney General of the State of Georgia then filed a motion to block Genarlow’s release and the case is now before the Georgia Supreme Court, who agreed to hold a hearing on the matter. The hearing was held on the 20th of July 2007. The decision is expected in September of 2007.

2 Joshua Widner was 18 years old when he engaged in multiple consensual sex acts with a 14 year old female. He was convicted of statutory rape, a misdemeanor crime for sexual intercourse and aggravated child molestation, a felony crime requiring a mandatory minimum of 10 years in prison for oral sex.

Works Cited

“Nearly 3 in 10 Young Teens ‘Sexually Active’.” MSNBC on the Web 31 Jan. 2005. 20 July 2007 http://www.msnbc.msn.com/id/6839072.

Knapp, Sue. “Brain Changes Significantly After Age 18.” Innovations Report 2 Aug. 2006. 20 July 2007. http://www.innovations-report.com/html/reports/studies/report-54958.html.

Thomson, Wright. “Outrageous Injustice.” ESPN on the Web 2007. 20 July 2007. http://sports.espn.go.com/espn/eticket/story?page=Wilson.

Palmer, Alyson. “Tale of Two Cases Shows Murkiness of Sex Law.” 14 June 2007. 20 July 2007.
http://www.dailyreportonline.com/Editorial/News/new_singleEdit.asp?individual_SQL=6%2F14%2F2007%4013816%5FPublic%5F%2Ehtm

Barry, Jody., and Kearstin Barry. Telephone interview. Nov. 2006.

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