Category Archives: sex crimes

The Romeo and Juliet Syndrome: Minnesota Sex Crimes Based On Age

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?

“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 sex crime delinquency cases in Minnesota, including those involving claims of criminal sexual conduct based on age, and sexting child porn cases.

Jesus as Criminal Defense Lawyer: The Woman Accused of Adultery

What can we learn about criminal law from the story of the Jesus and The Adulterous Woman in John Chapter 8 of the New Testament?  We can learn about what criminal defense lawyers do.  We can learn about the laws of evidence.  We can learn about a jury’s right and power to sentence.  We can learn about connecting persuasively with people.  First, the story from John Chapter 8:

But Jesus went to the Mount of Olives.  At dawn He went to the temple complex again, and all the people were coming to Him. He sat down and began to teach them.

Then the scribes and the Pharisees brought a woman caught in adultery, making her stand in the center. “Teacher,” they said to Him, “this woman was caught in the act of committing adultery. In the law Moses commanded us to stone such women. So what do You say?” They asked this to trap Him, in order that they might have evidence to accuse Him.

Jesus stooped down and started writing on the ground with His finger. When they persisted in questioning Him, He stood up and said to them, “The one without sin among you should be the first to throw a stone at her.”

Then He stooped down again and continued writing on the ground. When they heard this, they left one by one, starting with the older men. Only He was left, with the woman in the center. When Jesus stood up, He said to her, “Woman, where are they? Has no one condemned you?”

“No one, Lord,” she answered.

“Neither do I condemn you,” said Jesus. “Go, and from now on do not sin anymore.”

John 8:1-11 HCSB

Christ and the woman caught in adultery, Pieter Brueghel the Younger's oil on panel version of c. 1600

Christ and the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version c. 1600

What do criminal defense lawyers do?

In this story, Jesus shows us what criminal defense lawyers do.  We defend the human being accused of a crime, facing a punishment if convicted of a crime under the laws.

In this case the crime was adultery and the punishment for a person convicted under the laws could be death – death by a group of people throwing stones at you until eventually dead, a death by torture.  No doubt the law and the proscribed punishment were designed to deter the criminal behavior.

The accused person could testify on her own behalf, though throughout our legal history at times the accused has not been allowed to testify due to presumed lack of credibility.  But even with the right to testify on her own behalf, having an advocate speak for the accused gives her a better chance of being heard, fairly.

Here, Jesus speaks for her, and advocates for her life.  This is the most important thing a criminal defense lawyer does.  It is our sacred duty, our sacred honor.

The outcome sought by the advocate for the accused is the one desired by the accused.  Anything else would make us not an advocate, unethical or a failed advocate.

The means of achieving that outcome is our knowledge of the law (including the law of evidence and the law of jury power), and our ability to connect with people persuasively.

The laws of evidence. 

The laws of evidence in the early twenty-first century United States can be traced back to the time and place of Jesus, and earlier.  Jesus knew the laws well.

The laws of Moses required that before someone could be sentenced to death there must be two or more witnesses to the crime – a rule against hearsay, a right of confrontation, and a corroboration rule. Deuteronomy 19:15.

One accusing witness was not enough to trigger the death penalty.  Deuteronomy 17:6. Jesus and the crowd were told (“they said to him”) that the woman was reportedly “caught in the act.” Yet there is no witness or witnesses identified nor is there any witness testimony. This would make a death penalty illegal under the law.

Had there been two or more witnesses present to accuse and claim to be witness to the woman’s adultery, the law proscribed the death penalty for both the woman and the man. Deuteronomy 22:22 (“If a man is discovered having sexual relations with another man’s wife, both the man who had sex with the woman and the woman must die”).

Where is the man? How do we know the man is not any one of the men in the de facto jury?  The prosecutors do not have the man who they claim committed adultery with the woman.

After the accusers all have left, Jesus asks a legal question: “Woman, where are they? Has no one condemned you?”  With no accusers remaining, our attention is drawn to the requirement of eyewitnesses to the crime before guilt could be established and a sentence imposed.

Jesus’ statement: “Neither do I condemn you” can be interpreted to mean that Jesus was no eyewitness to any claimed behavior of the woman, especially in the context of what came before, concerning the lack of the legal requirement of eyewitnesses.

One interpretation of the story can be that Jesus gained her acquittal by skillful use of the laws accepted by the jury.

A jury’s right and power to sentence

We should note here that it is not at all clear that the woman was put on trial in the formal, proper manner proscribed by the laws of the time and place.  The contrary appears more likely (not unlike the Trial of Jesus, later).  And yet, we can still use the story to illustrate the jury’s traditional right and power to sentence.

Whether a proper, lawful trial or not – the accusers were urging a death by torture sentence be carried out by the crowd, right there on the spot.  Jesus, acting as the woman’s advocate, invoked not only the law and its requirements; he also made a direct appeal to the right, the discretion, and the power of the de facto jury to refuse to convict her.

Today we have many terms for this including jury lenity and jury nullification.  Jury lenity is the jury’s right to be more lenient than the law requires.  Jury nullification is the right or power of the jury to acquit a person (not-guilty verdict) even where it believes the accused was lawfully proven to have violated the letter of the law.

As often is the case, it is difficult to know whether the de facto jury walked away after the appeal of Jesus in deference to the laws of evidence or out of compassion.  But when Jesus said: “The one without sin among you should be the first to throw a stone at her,” was this not a plea for compassion?

His later statement to her: “Go, and from now on do not sin anymore,” implies that perhaps she did sin, but either lawful proof was lacking, or both he, the jury, and the accusers were blessed with compassion for her.  If so, this could have been an appeal to jury nullification or lenity, as well as an appeal to follow the laws of evidence and of a fair trial – either or both.

Connecting persuasively with people.

The ancient Greeks, Aristotle, spoke of ethos, pathos, and logos as the paths of persuasion.  Clearly the ethos of Jesus was also on trial.

“Ethos” is an appeal to ethics – a means of convincing someone of the character or credibility of the persuader – here Jesus.  After all, Jesus had returned there again to teach his gathered students, writing on the ground.

The scribes and the Pharisees then brought a woman before him and his students and accused her of adultery demanding her death, “to trap Him, in order that they might have evidence to accuse Him.”  It seems the poor woman may have been a pawn in a game designed to destroy the ethos, the credibility of Jesus to his students.

The description of his behavior shows Jesus’ confidence.  He is a teacher, interrupted as he is writing on the ground while instructing his students.  He is addressed with respect.  (Ethos goes both directions.)  He listens with respect.  He makes his short argument on her behalf, then resumes writing on the ground quietly, waiting for the people for do the right thing.  We see social mirroring.  We see the invocation of shared values and laws.  He is connecting.  Jesus makes good use of his ethos to persuade.

“Logos” is an appeal to logic – a way of persuading an audience by reason.  Jesus has pointed out the lack of an eyewitness, the lack of corroboration by two eyewitnesses, the unlawful hearsay accusation, the lack of an identified male accused adulterer (“caught in the act?”) , the lack of confrontation of witnesses — all contrary to law.  These are all appeals to logic, that the proposed conclusion is not proven under the law by the evidence supplied by the prosecutors.

“Pathos” is an appeal to emotion – a way of convincing an audience of an argument by eliciting an emotional response.  “The one without sin among you should be the first to throw a stone at her.”  Jesus challenges each listener to publicly declare that he or she is without sin.  He equates being the first to throw a stone at her with being the first to publicly declare being without sin – impossible for an honest person.  This challenge pierces right to the heart of any human being, requiring us to shift focus away from the accused woman, and to look inside to search within ourselves instead.  He correctly asks the jury to question whether the issue is really about them, not the lady accused.  She is not “the other:” they are like her – connected by something in common.  He inspires them to be greater than who they might have been, the low identity they had been invited to assume by the prosecutors.

Thomas C. Gallagher is a Minneapolis Criminal Lawyer, interested in both history and the law.