In Shakespeare’s Romeo and Juliet, Lady Capulet says her daughter Juliet is “not yet fourteen,” being about two weeks from her fourteenth birthday. Though we never are told her lover Romeo’s age, it’s apparent that he is also a teen, older, but still of tender chin (without beard). Each from families bearing grudges towards each other, the star-crossed lovers’ fate is tragic. But were they criminals? Not then, as Juliet’s mother makes clear.
Would they be criminally prosecuted for age-based sex crimes in Minnesota today? Young people like them can be and often are prosecuted in juvenile and adult criminal courts in Minnesota. Should they be? Should we instead change the laws in Minnesota to decriminalize young love? Should foolish love be a crime?
“Oh, what a tangled web we weave; When first we practise to deceive!” (from Marmion; A Tale of Flodden Field, by Sir Walter Scott.)
Age-based sex crimes are crimes based upon some aspect of sex, plus a too-young age. Common law rape required an element of force, coercion or lack of consent. The more modern invention, often-called “statutory rape” since it does not require an element of force or lack of consent, involves quite consensual acts. But it rests upon the legislative fiat that a person younger than 16, for example, is so feeble-minded as to be incompetent to consent to sexual acts. (See, Minnesota Statutes §609.342, subdivision 1 (a) “Neither mistake as to the complainant’s age nor consent to the act by the complainant [sic] is a defense.” The “complainant” is usually opposed to the prosecution.) This premise appears deceptive – the more so considered next to the fact that in Minnesota the minimum age for competence to be criminally prosecuted in a delinquency petition is ten years old. See, Matter of Welfare of S.A.C., 529 N.W.2d 517 (Minn. App. 1995).
Why would the same body of law, the same jurisdiction, consider a ten year old competent to form intent in her mind to do a criminal act, but consider a thirteen year old incompetent to intend to have sex? A tangled web, indeed.
“O Romeo, Romeo, wherefore art thou Romeo?”
Do we really want to permanently label our Romeos and Juliets sex criminals, for the crime of being young lovers? Do we want them to have to Register as a Predatory Offender for a minimum of ten years up to life? Though many of Minnesota’s Criminal Sexual Conduct statutes contain exceptions for lovers within a range of 24 to 48 months depending upon the crime, for those outside these exceptions “mistake of age,” they say, is not a defense.
“The Party was trying to kill the sex instinct, or, if it could not be killed, then to distort it and dirty it.” — George Orwell (1984)
These days, one could categorize the growing list of sex crimes based upon proximity: penetration, touch, and non-touch. When sexual penetration is criminal, it is a more serious crime than touch, which in turn is generally thought to be more serious than non-touch. Examples of non-touch sex crimes include child pornography or indecent exposure.
Before our modern day Romeo and Juliet became lovers, their flirting included sexting.
Young lovers have been around long before Minnesota criminalized them. But some non-touch sex crimes are an artifact of recent technology, like smart phones. Most kids have them these days, and take pictures with them, sometimes naked and arguably sexual images of themselves. Then they share them with each other over cell phone towers and Wi-Fi connections to the internet. The images may be stored on their phones or in the data cloud. Sexting is a new word meant to describe sex texting – sending images via text messaging applications.
Minnesota laws have not kept pace with the times. Should every foolish act be made a crime? Our laws criminalizing child pornography are now being used to prosecute young people for taking naked and arguably sexual images of themselves, then sharing them with each other. A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession of Child Pornography, Dissemination of Child Pornography, or both, under Minnesota Statutes §617.247. Such prosecutions appear to violate the young person’s fundamental right to freedom of speech and expression under the First Amendment of the U.S. Constitution as well as the Minnesota Constitution. Better, let’s change the laws to make them less unfair.
Can a juvenile be a “predatory offender” due to sexting or being a young lover?
Labeling juveniles “predatory offenders,” requiring them to register their whereabouts, vehicles, schools, addresses, and on and on; and sending them to lock-up in prison of they slip up any little part of doing so – is that what we really want to do after a juvenile has had consensual sex with his or her beloved, or after sexting?
Rehabilitation vs. Predatory Offender Registration for ten years to life.
Juvenile courts were a result of social reform movements of the late 19th Century. Rather than criminally prosecute juveniles like adults, a separate juvenile court has been set up with a greater focus on rehabilitation for those adjudicated responsible for some “criminal” act. An important aspect of juvenile courts is that they have traditionally been non-public – confidential – to protect the juvenile from severe collateral consequences, and allow the kid to leave youthful mistakes in the past. In recent years, that has been eroded to a degree. In Minnesota, if a juvenile is charged with a felony and is 16 years or older, the case is public. (Almost all “sex crimes” are felonies in Minnesota.)
Current Minnesota statutes contain no juvenile exception for “predatory offender registration.” See, Minnesota Statutes § 243.166. This conflicts with the main, rehabilitative purpose of juvenile court and its protection of juveniles from life-long public exposure. The only ways to prevent a juvenile charged with a sex crime from being required to register with the state as a sex criminal for ten years to life; is to get the entire case dismissed, an acquittal, or a stay of adjudication. An adjudication triggers registration, under current law. Criminal lawyers and courts can wrestle with these things, to try to save some young people from the jaws of the law. But wouldn’t it be better to change the laws to make them less unfair and less harmful?
Thomas C. Gallagher is a Minneapolis criminal lawyer who handles sex crime defense cases and juvenile delinquency cases in Minnesota, including those involving claims of criminal sexual conduct based on age, and sexting child porn cases.