Posted by Eugene Volokh:
Court Rejects as "Absurd"
http://volokh.com/archives/archive_2007_07_15-2007_07_21.shtml#1184713762
the sex crime (sexual contact with a child under 14) prosecution --
even in juvenile court -- of a 12- and a 13-year-old who had
consensual sex with each other. An interesting opinion, and an
interesting occasion for a puzzle: Which court do you think this is?
To learn the answer, just click on [1]the full opinion -- but try not
to click until you read the entire excerpt:
When she was thirteen years old, Z.C. engaged in consensual sex
with a twelve-year-old boy and became pregnant. The state
prosecutor chose to file delinquency petitions against both Z.C.
and the boy for sexual abuse of a child under [State] Code section
76-5-404.1 [basically, in this context, any sexual touching of
someone under 14 -EV], a crime that would constitute a second
degree felony if committed by an adult....
Because we conclude that the legislature could not possibly have
intended to punish both children under the child sex abuse statute
for the same act of consensual heavy petting, we hold that applying
the plain language of the statute in this case produces an absurd
result. [Footnote, slightly moved: It is undisputed that Z.C. and
the boy engaged in more than just sexual touching, but we must
analyze the absurd result question in the context of the law
actually applied and the act with which the State chose to charge
Z.C., not the law that might have been applied or the act with
which the State could have charged Z.C.]
Sexual abuse of a child is one of the most heinous crimes
recognized by our penal code. The gravity of this crime is
reflected by the fact that it is punished as a second degree felony
if committed by an adult. Child sex abuse merits serious penalties
because of the extreme psychological harm that the perpetrator
causes the victim. Therefore, like all forms of sexual assault,
child sex abuse presupposes that a single act of abuse involves a
victim, whom the statute endeavors to protect, and a perpetrator,
whom the statute punishes for harming the victim.
The State, however, applies [State] Code section 76-5-404.1 in an
unprecedented manner. By filing delinquency petitions for child sex
abuse against both participants for sexually touching one another,
the State treats both children as perpetrators of the same act. In
this situation, there is no discernible victim that the law seeks
to protect, only culpable participants that the State seeks to
punish. We know of no other instance in which the State has
attempted to apply any sexual assault crime to produce such an
effect.
[Footnote: The primary fail-safe against the absurd application of
criminal law is the wise employment of prosecutorial discretion, a
quality that is starkly absent in this case. While the State makes
no attempt to defend the prosecution's charging decision, it
suggests that the particular offense selected by the prosecutor as
the basis for the delinquency petition is not significant because a
juvenile delinquency adjudication is not a criminal conviction, but
merely a means to bring the juvenile within the guiding supervision
of the juvenile court. If this is truly the case, it begs the
question of why the prosecutor could not have accomplished the
intended result by basing the delinquency petition on a victimless
offense that more accurately fits the conduct at issue.]
We acknowledge that the legislature has demonstrated its intent to
punish both participants in victimless, extramarital sexual
activity under [State]'s adultery and fornication statutes.
However, these statutes differ from sexual assault crimes, such as
child sex abuse, in both the theory and degree of punishment.
Rather than punishing an actor who has perpetrated a crime against
a victim, these laws demonstrate the legislature's disapproval of
the acts of both participants for violating a moral standard.
Because these crimes do not involve a victim, they involve a lesser
degree of punishment. Both adultery and fornication are punishable
as class B misdemeanors. Thus, while the legislature clearly could
have intended some degree of simultaneous culpability for both Z.C.
and the twelve-year-old boy under the fornication statute in order
to discourage their admittedly reckless and age-inappropriate
behavior, it is absurd to conclude that the legislature intended to
simultaneously punish both children for child sex abuse, a crime
that clearly envisions a perpetrator and a victim.
A review of the floor debates regarding the 1983 enactment of the
[statute] reveals no evidence that the legislature contemplated
application of the statute to situations where the same child was
both victim and perpetrator. Although we generally do not consult
legislative history where the meaning of the statute is clear,
after finding that the plain meaning has been applied in an absurd
manner, we seek to confirm that the absurd application was indeed
unintended by the legislature....
We conclude that the legislature could not have intended the child
sex abuse statute to be applied to punish Z.C. for the conduct at
issue. And the fact that this is a juvenile court disposition, in
which the judge enjoys considerable latitude in crafting
punishments and assigning state services designed to help the
child, does not change our conclusion. No amount of judicial lenity
to compensate for the absurd application of the law changes the
fact that the application of the law was absurd to begin with.
Moreover, labeling Z.C. with the moniker of "child abuser," even
within the juvenile court system, can have serious consequences
that were not intended by the legislature. A delinquency
adjudication for sexual abuse of a child can lead to sentencing
enhancements for any offenses Z.C. might commit while she is a
juvenile or even as an adult if her juvenile record is not
expunged. Such an adjudication also has the potential to affect any
civil proceedings related to the custody of her child or any future
attempts to seek child support from the father.
We therefore vacate Z.C.'s adjudication. We stress, however, that
our holding is narrowly confined to the application of [State] Code
section 76-5-404.1 in situations where no true victim or
perpetrator can be identified. Even among children under the age of
fourteen, there are unfortunately situations where an older or more
physically mature child abuses a younger or smaller child. In cases
where there is an identifiable distinction between the perpetrator
and the victim, it is manifestly logical to conclude that the
legislature intended to include such acts within the scope of
[State] Code section 76-5-404.1. In Z.C.'s case, however, where
both children were under the age of fourteen and were of similar
age, where both children met the intent requirement of the statute,
and where there was no evidence of any coercion or force, we
conclude that application of the child sex abuse statute produces
an absurd result....
Even though the plain language of section 76-5-404.1 allows Z.C. to
be adjudicated delinquent for sexual abuse of a child, we conclude
that the filing of delinquency petitions against both participants
produces an absurd result not intended by the legislature because,
like all sexual assault crimes, the statute presupposes a
perpetrator and a victim. We therefore hold that the juvenile court
erred in denying Z.C.'s motion to dismiss the delinquency petition.
We remand this matter to the court of appeals with instructions to
remand it to the juvenile court to vacate Z.C.'s delinquency
adjudication.
References
1. http://www.utcourts.gov/opinions/supopin/ZC071707.pdf
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