pageok
pageok
pageok
Court Rejects as "Absurd"

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 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.

VincentPaul (mail):
What about a younger and (not or) more physically able child abuses another child (regardless of whether that child is a year, or two, or three older)?
7.17.2007 8:25pm
Steve:
I don't think the decision forecloses any actual abuse prosecutions. It's the fact that both parties were prosecuted that basically gives away the game.
7.17.2007 8:29pm
PatHMV (mail) (www):
I'd be very worried that a prosecutor who would be indiscreet enough to file charges like this would, next time, simply pick one of the kids to file charges against, even if the situation were exactly the same.

Imagine in this case if the prosecutor had only charged the boy. Would the court have even noticed that the girl was a willing participant? Or would the police and prosecutor have shaped her recollection to say that she really didn't want to, and he intimidated her into it.

Kids play doctor, folks. Keep watch at them, punish them when you catch them at it, but for goodness sake, stop making it a criminal offense.
7.17.2007 8:40pm
e:
But a 14 year old who does the same thing to a 13 year old gets indoctrinated into criminal process?
7.17.2007 8:42pm
Wintermute (mail) (www):
The court is substituting its will for the clearly expressed intent of the legislature. For that, impeachment and conviction are in order.
7.17.2007 8:45pm
Kazinski:
Steve:
It should'nt be up to the prosecutor to flip a coin (which would in practice never come up tails) and decide who the perp was, it should rely on the facts:

...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....
7.17.2007 8:47pm
Eugene Volokh (www):
Steve: From footnote 10: "Our analysis would likewise apply to all cases similar to Z.C.’s even if the State elected to charge only one of the minors involved. We hold that the application of Utah Code section 76-5-404.1 is absurd where no true perpetrator or victim exists. And the State may not create a perpetrator and a victim through selective prosecution. Rather, charges against the perpetrator must be based upon a material gap in the maturity of the two participants, evidence of coercion or force, or a wider age differential than exists in this case." (This doesn't respond to PatHMV's comment.)

Wintermute: What's your response to the argument the court gives in its opinion that its view is actually consistent with what the legislators intend?
7.17.2007 8:50pm
Stickler:
Not to be pedantic, but I'm sure the court meant "If this is truly the case, it begs raises 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."
7.17.2007 8:54pm
Falconet (mail):
If you hate to be pedantic, then don't be pedantic. In common usage, acknowledged by the dictionaries, the phrase "beg the question" has two different meanings. The first is the fallacy of presumption, also know as petitio principii, which you impliedly assert is the only correct denotation. But the second meaning, which is something like "raises the question," as you demonstrate with your strike-modified "fix" of the quote, is also a valid usage. At the very least, you must acknowledge that the usage is contested (by grammarian schoolmarms, not by actual linguists).
7.17.2007 9:23pm
Alec:
This is vaguely similar to a FL case last January where an appellate court upheld two convictions for 16 year-olds who had taken pictures of themselves engaged in sexual activity (which was legal, the sex that is) for production of child pornography (not legal). The appellate court held that it did not infringe on their privacy rights, although there was a dissent if I remember correctly. The rationale was that it was the dissemination of child pornography the state was trying to prevent, so they could legitimately prosecute teenagers who produced it (consensually and without ever exposing it to a third party, apart from in casual conversation). I personally thought that at least one of the fundamental concerns with child pornography was "revictimization," i.e., the child or teenager suffers by knowing that their exploitation is ongoing because it has been recorded and is being watched by third parties.

I am not sure I agree with the adultery and fornication analogies, though. Those laws (particularly fornication laws) are constitutionally suspect post-Lawrence. Bare moral animus and all that (adultery may be different). Two, what is the statutory ambiguity that gets you to the legislative history? This is the language of the relevant statute:

A person commits sexual abuse of a child if, under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, or an attempt to commit any of these offenses, the actor touches the anus, buttocks, or genitalia of any child, the breast of a female child, or otherwise takes indecent liberties with a child, or causes a child to take indecent liberties with the actor or another with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person regardless of the sex of any participant.

I think the distinction between "child," "actor" and "person" (coupled with the "participant" at the end) all suggest that it only applies to adult-child sexual relations. The Court agreed. The only reason they bothered to discuss legislative history was to highlight the absurdit of treating someone as both a victim and a perpetrator. That has come up in some federal cases treating prostitutes as both victims of prostitution and criminal participants in trafficking schemes (I know of at least one case where that affected guidelines calculations).
7.17.2007 9:27pm
vinnie (mail):
Was this prosecutor a classmate of Nifong?
Yes kids will play doctor. In Idaho if offspring results the baby's grandparents can be on the hook for child support. (A good thing IMHO.)
How does this, or DOES this relate to the Wilson case in Georgia?
7.17.2007 9:32pm
TechieLaw (mail) (www):
Two points:

(1) In my personal opinion, this is the right outcome for the case, given apparent prosecutorial discretion run amok.

(2) Based on the excerpts of the case quoted (I didn't read the whole thing), I can't help but think that this decision is pure "judicial activism." It's a judge substituting his own wisdom for that of the legislature -- which, despite his citation to the legislative history, doesn't convince me that the legislature clearly didn't intend this result. If the clear language of the statute doesn't have a minimum age limit because the legislature wasn't smart enough to think of one, what right does a judge have to read their own morality into the statute? (I'm playing devil's advocate here, since, as I've stated above, I agree with the outcome.)

(3) Not having read the opinion, I can't be sure this isn't already in there, but: In a "real" statutory rape case (50 year old having sex with a 12 year old), the 12 year old can't be convicted as an accomplice even if she consents, I think, because the statute is intended to protect her. Couldn't the judges have applied the same reasoning here to prevent this ridiculous outcome?

Putting aside my point #3, can anybody defend this outcome as anything other than judicial activism against the clear letter of the law?
7.17.2007 9:43pm
A Guest Of Wind:
I recall a Michigan case from some years back, where the Court of Appeals held that both minors were properly prosecuted.
7.17.2007 9:49pm
Shelby (mail):
a puzzle: Which court do you think this is?
I had no particular idea which court it was. Are many readers on this website going to be surprised that it was the high court of a "conservative" state?
7.17.2007 9:56pm
Hattio (mail):
TechieLaw,
It depends on your definition of judicial activism. But, yes, as conservatives rail against "judicial activism" by "liberal" judges, this clearly is it. Bravo for having the balls to admit it (something I notice most other conservative commentaters haven't done). Now, will you go the next step and question the automatic denigration of "judicial activism?"
7.17.2007 9:57pm
LTEC (mail) (www):
The primary job of lawmakers is to make laws. If and when they realize that they have screwed up and written a law saying something that they did not mean, they should immediately meet and correct the law. If they like the law they have made, then do we really want judges or prosecutors "fixing things"? Our journalists should be demanding answers from the Utah lawmakers.
7.17.2007 10:10pm
TechieLaw (mail) (www):
Hattio:

Before asking whether this was judicial activism, I stated that I thought the outcome was correct given the facts. I'm asking the same question you are: when is it *appropriate* to engage in this type of judicial activism? What's the standard?

Even if one believes that legislative history should be used to interpret the plain meaning of a statute, there legislative history cited above doesn't really say much more than the floor debate "reveals no evidence that the legislature contemplated application of the statute to situations where the same child was both victim and perpetrator." That's all fine and nice, but the statement doesn't get very far to prove the negative that the legislature *didn't* intend the law to apply to these kids. Imagine what would happen if that same reasoning were applied to every other statute.

Basically, the judges are saying "this is ridiculous." I don't have a problem with it because of the extreme circumstances of this case, but why won't the courts in the Genarlow Wilson case do the same, where the facts are slightly less extreme, but the outcome is still ridiculous?
7.17.2007 10:11pm
Joral:
Alec, I think the following quote from the decision would argue against your excluding 'child' from 'person'


The statute itself defines a child as a “person under
the age of 14,” tacitly acknowledging that a child falls within
the definition of the more general term “person.” In addition,
excluding children under the age of fourteen from the definition
of “person” is problematic because the statute uses the term
“person” to discuss the victim of the crime. In order to convict
an adult of child sex abuse, the State must show that the
individual acted either with intent to sexually gratify any
person or with intent to cause substantial emotional or bodily
harm to any person. Id. § 76-5-404.1(2). If children are
excluded from the definition of “person” under this statute, an
adult who sexually touched a child with the sole intent to
emotionally damage the child could not be held accountable
because the child would not be a “person.”


Maybe I'm misreading your statement, but I honestly don't see where the court agrees that the statute should only apply to adult-child cases. Unless you're oversimplifying part of the following:

Rather, charges against the perpetrator
must be based upon a material gap in the maturity of the two participants, evidence of coercion or force, or a wider age
differential than exists in this case.

While a wider age difference will definitely include adult-child relationships, should it not include a case where an older 'child' decides to take advantage of a younger one?
7.17.2007 10:17pm
JBL:

I dislike the term "judicial activism" because I have yet to come across a sensible definition of it that fits a majority (or a plurality) of the contexts in which I've seen the term used.

One way to parse the opinion is that the judge is making two arguments:

1. The case in question fails to meet the definition of sexual abuse of a child as described in Code section 76-5-404.1.

2. The judge thinks the outcome is absurd.

I would think that 1 is a type of statement that is entirely appropriate for a judicial opinion, and 2 is not. Pity he couldn't stick to the basics.
7.17.2007 10:25pm
Steve H (mail):
Wait. So it's judicial activism to reject an absurd interpretation of a vague statute?
7.17.2007 10:28pm
TechieLaw (mail) (www):
Steve:

For some reason, people seem to think calling something "judicial activism" is a dirty word. That's not the context I'm using here. For example, my Con Law professor -- a moderate conservative -- called Brown v. Board of Ed an "activist court" and meant it as a compliment.

So, call it whatever you want to call it -- "judicial activism," "rejecting an absurd interpretation," etc. Just give me a standard for when it's "OK" for a court to supplant the legislature's wisdom with their own.

This is a relatively easy case for whatever standard you pick. But what's the standard for when it's not so easy?
7.17.2007 10:37pm
Steve H (mail):
From JBL:


I dislike the term "judicial activism" because I have yet to come across a sensible definition of it that fits a majority (or a plurality) of the contexts in which I've seen the term used.

One way to parse the opinion is that the judge is making two arguments:

1. The case in question fails to meet the definition of sexual abuse of a child as described in Code section 76-5-404.1.

2. The judge thinks the outcome is absurd.

I would think that 1 is a type of statement that is entirely appropriate for a judicial opinion, and 2 is not. Pity he couldn't stick to the basics.


JBL, I think it is incorrect to break the analysis up into those two steps. I think the analysis goes like this:

1. It is not entirely clear whether the case in question falls within the definition of sexual abuse of a child, because (a) an argument can be made that it does if one merely looks at the word "person" out of context, but (b) an argument can be made that it doesn't when one considers the language, context, and purpose of the statute as a whole (as well as the legislative history).

2. The outcome would be absurd if the court system interpreted the statute to apply to the case in question.

3. Therefore, the most reasonable interpretation of the statute is that it does not cover the case in question.

By the way, I don't know if Justice Jill Parrish likes to be called "he".
7.17.2007 10:39pm
Public_Defender (mail):
Attorney who practice juvenile law have previously told me about similar cases. So I'm not at all shocked.

Also, the argument that the charges were needed to get the kids under the "protection" (repressed laughter) of the juvenile "justice" system ignores the possiblity of sex offender registration requirements.

Even if those requirements don't apply now, legislatures all over the country have been changing registration requirements retroactively. Arguably, the laws are now so punitive that ex post facto protections apply, but that's an argument that generally not succeeded (at least not yet).

If the convictions stood, these kids could later find themselves subject to lifetime sex offender registration, residency restirctions, community notification, and having their names, photos, and addresses on the internet.

This case is a fair result. One of my recurring themes in this forum is that judges will frequently fudge the law to avoid results they think are extraordinarily unjust. If you think what the judges did here was justified, remember this case the next time a liberal judge overturns the death penalty in a case where the judge thinks the defendant got shafted.
7.17.2007 10:39pm
Public_Defender (mail):
Also, the attorneys for the State of Utah deserve to have their names repeated:

Mark L. Shurtleff, Matthew D. Bates, and Mark R. DeCaria defended this absurd prosecution. They clearly lacked the personal and professional decency to concede error.
7.17.2007 10:44pm
Steve H (mail):
Just give me a standard for when it's "OK" for a court to supplant the legislature's wisdom with their own.

But you are already begging the question (!) when you refer to the legislature's "wisdom." You are assuming that the Legislature consciously intended and chose to subject 12-year-olds to delinquency proceedings for playing doctor with each other. Yet there is no reason to believe that.

That's why I think it's unfair to describe this as judicial activism.
7.17.2007 10:46pm
Public_Defender (mail):
You can find the oral argument here.

I don't have time to listen tothe whole 53 minutes, but here's an excerpt from minute 21 (I forwarded to the State's argument):


AG or prosecutor: "Let me explain why this in not unreasonable, as I explained before . . ."

Justice: "Better to explain why it's not unconstitutional."

Laughter/cross-talk

Justice: "It's an uphill battle on unreasonable."
7.17.2007 11:04pm
PatHMV (mail) (www):
I'm as pro-Scalia and pro-Thomas as you can imagine. But the commenters attacking this decision as misguided judicial activism are the misguided ones. Maybe other states are different, but in Louisiana, we've actually long embodied this rule of interpretation in statute, La. Civil Code Art. 9:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature


Particularly in applying criminal law, which takes away the liberty of the convicted, this is an entirely appropriate rule. We don't want judges acting entirely like automatons, imposing an absurd result which it seems clear no legislator would have intended. Note that the operative word is "absurd." That's an extreme word, intended to be used rarely (and it is in fact used rarely). This is not a case where some judge is appropriating to himself the right to determine what is and is not "rational," and thus within the purview of the legislature to legislate.

This is pure statutory interpretation, using a well-established rule of interpretation. If the judge was wrong, the legislature can come back and pass a law stating flatly that consensual sex between 12 year olds is a crime for both of them, and the judge will then apply that statute. But the result is certainly so absurd that it's entirely appropriate for the judges to decline to impose criminal penalties on these children absent a very specific, intentional command in the statute mandating that result.
7.17.2007 11:07pm
Dave N (mail):
I noted Utah's system for statute codification and immediately knew it was either the Utah Court of Appeals or the Utah Supreme Court.

Having lived in Utah for a decade (and having gone to law school there), I would note that in large part because of the Utah judicial selection system (a modification of the Missouri Plan where a panel submits a list of candidates' names to the Governor and the Governor must choose from those on the list), the judiciary is not as conservative as it would likely be if judges were popularly elected. In fact, there was a movement in the late 1980s and early 1990s to expand the constitutional protections of the Utah Constitution beyond those in its federal counterpart.

In my experience, most Utah judges are principled and professional--hardly the conservative neanderthals some readers might picture. I would also note that both of the State's law schools are considered top tier regional law schools.

Overall, I think the Utah Supreme Court reached the right result and expressed itself in a logical manner.

As a final note, Public Defender thinks the Attorney General should have conceded error--but in the procedural history of the opinion, the Supreme Court noted that the prosecution "won" at the Court of Appeals level. It would be odd indeed for any litigator to concede error in any Supreme Court after prevailing in the Court of Appeals.

(If he wants to criticize the Attorney General for not conceding at the Court of Appeals level, that would be a different question)
7.17.2007 11:08pm
Steve H (mail):
From LTEC at 9:10:


The primary job of lawmakers is to make laws. If and when they realize that they have screwed up and written a law saying something that they did not mean, they should immediately meet and correct the law. If they like the law they have made, then do we really want judges or prosecutors "fixing things"? Our journalists should be demanding answers from the Utah lawmakers.


It looks like the Utah Legislature did fix things after the Utah Court of Appeals ruled:

Recent legislative developments bolster our conclusion that the children’s simultaneous delinquency adjudications could not have been intended by the legislature. In reaction to the court of appeals’ disposition in this case, the legislature passed a bill that amended the diversion statute to avoid the application of the child sex abuse statute in similar cases.


The problem is that such a fix is too late to help the person who is already prosecuted.
7.17.2007 11:15pm
TechieLaw (mail) (www):
Steve:


You are assuming that the Legislature consciously intended and chose to subject 12-year-olds to delinquency proceedings for playing doctor with each other. Yet there is no reason to believe that.


There's also little reason to believe that the legislature in Georgia intended to prohibit oral sex between a 15 and 17 year old but permit straight sex between them, but the outcome there is completely different. (For the moment, put aside the fact that the Georgia legislature completed bungled their attempt to "fix" this problem.)

Can you explain this difference other than to say that one court is more willing to contradict the clear meaning of the statute in favor of an approach that examines "fairness" and "justice" rather than "law"?

Why do we need to prove that the legislature "consciously intended" anything at all? Playing devil's advocate again, let them re-write the law if they want to improve it.

PatHMV: How should a judge go about distinguishing "absurd" interpretations of law from "rational" ones? Those that shock the conscience? Those that have no rational basis? or some other standard?
7.17.2007 11:23pm
LTEC (mail) (www):
Steve H --

Thanks for the info.

But why is the "fix too late to help the person who is already prosecuted"? Is it because the case was decided in court before the legislature could meet? This seems to me unlikely. In fact, as soon as the charges were brought, or as soon as someone pointed out the flaw in the legislation, this should have been dealt with quickly at the next meeting. Instead of making pompous speeches, the real job of lawmakers is to constantly examine, clarify, and revise the existing laws.

(Of course, there is no problem passing legislation that retroactively makes a law less harsh.)
7.17.2007 11:32pm
Steve H (mail):
TechieLaw:

First, it's not quite so absurd to think that the Georgia Legislature intended to criminalize oral sex but not intercourse. There are a number of states that criminalize consensual oral sex between adults but not consensual intercourse -- or punish the former more severely than the latter.

Second, the Georgia courts' reaction to the Genarlow Wilson matter has no bearing on whether the Utah Supreme Court was right in this particular case.

Third, my point is that the court did NOT disregard the clear "meaning" of the statute. They disregarded the language (as looked at in a particular way), recognizing that language does not always correspond with meaning.

Fourth, as I pointed out above, the legislature DID re-write the statute, showing that they DID want to improve it. But depending on the Legislature to rewrite the statute is not enough to help the persons who were entangled before the problem comes to light (as with Genarlow Wilson).

Also, let's not forget that this is not like interpreting the 220-year-old US Constitution. This is about interpreting a statute from 2003. So there is a reliable record of what the legislature was trying to do with the statute, and why they were doing it. Plus, members of the courts know the legislators, and are usually aware of what the legislature is trying to accomplish when it passes a statute like this.
7.17.2007 11:36pm
Steve H (mail):
LTEC, I'm not sure that the legislature actually could undo a delinquency determination that has already been made and affirmed by the Utah Court of Appeals.

But as a practical matter, the legislature can't just decide to meet. The legislature in Utah meets for 45 days a year, starting on the third Monday in January. Otherwise, I believe the Governor has to call them into special session, which rarely happens.

So it becomes a choice -- should courts be allowed to consider reality in interpreting/applying statutes, or should the fate of individuals such as these depend on whether there is enough of an outcry to spark the Governor to call a special session?
7.17.2007 11:39pm
TechieLaw (mail) (www):
Steve:


First, it's not quite so absurd to think that the Georgia Legislature intended to criminalize oral sex but not intercourse. There are a number of states that criminalize consensual oral sex between adults but not consensual intercourse -- or punish the former more severely than the latter.


Regarding voluntary oral sex and intercourse: Please explain how any differentiation between the two in criminal law -- when done between consenting adults -- withstands a test for absurdity when a law that (according to its plain language) punishes consensual sex between a 12 and 13 year old does not withstand the same test.

In other words, if a legislature is within its rights to declare that the only form of permissible sex is intercourse, why isn't it also within its rights to make it a crime for children below a certain age to engage in any type of sexual activity? Either both are absurd or neither is absurd. To declare one absurd and not the other is to begin drawing the type of fine lines that some folks seem to dislike because they indicate an "activist judiciary."

(See, e.g., Justice Kennedy's opinion that a law prohibiting homosexual intercourse doesn't withstand rational basis review. Regardless of whether or not you agree with him, I think that a law prohibiting oral sex between consenting adults would fall into the same category.)


Third, my point is that the court did NOT disregard the clear "meaning" of the statute. They disregarded the language (as looked at in a particular way), recognizing that language does not always correspond with meaning.


What is the standard for when it is appropriate to do this and how the court should determine the "meaning" when it does not correspond with the plain language?

(FWIW, I think that the answer to that question is incredibly difficult to draw in purely logical terms.)
7.18.2007 12:05am
Henry679 (mail):
I know this is a blog primarily for addressing legal issues, but isn't there some room in this thread for mentioning that it is America's bizarre attitudes about teenagers as sexual beings that leads to these demented prosecutions?

As the song goes, free your mind and your ass will follow. Until we put away inanities like "abstinence education" as the delusional fairy tales they assuredly are, how can we expect the law to be any more rational than the rest of society?
7.18.2007 12:13am
PatHMV (mail) (www):
TechieLaw, you're missing the point when you speak in language of the legislature being "within its rights." This is NOT a matter of constitutional interpretation. The judges did not say that the legislature cannot make this activity a crime. In fact, they rather made clear the legislature could do so if they wanted. However, they considered such a result in this case to be absurd and thus not intended by the legislature. In the Genarlow Wilson case, the legislation was very clear that the intent of the legislature was to set cut-off ages for various types of sexual activity between legal adults and legal minors. Such intent was not at all clear in the Utah case. The language, although generally clear, was not clear in expressing an intent to apply it to this particular case. By contrast, in the Wilson case, the legislature did intend it to generally encompass behavior between a 17 year old and a 15 year old. Thus, it would be "activist" to refuse to apply that law because one does not like the result. The Utah case is not about the judges disliking the result, but about their finding that the legislature used language which would have absurd effects they did not intend.
7.18.2007 12:13am
Anon Y. Mous:
I think the boy is extremely lucky that the ages weren't reversed. Had he been the one older than the girl, combined with the fact that the girl became pregnant, it would have been much easier for the prosecutor to decide that the girl was the victim. Given the actual facts, to charge the younger boy with child abuse of the older girl was too absurd for even this prosecutor.
7.18.2007 12:24am
TechieLaw (mail) (www):
PatHMV:


The judges did not say that the legislature cannot make this activity a crime. In fact, they rather made clear the legislature could do so if they wanted. However, they considered such a result in this case to be absurd and thus not intended by the legislature.


The logic here is that "if a law has an absurd result, the legislature did not intend it, and a court will not permit such an interpretation unless the legislature really wanted to intend such an absurd result."
7.18.2007 12:26am
Steve H (mail):
I think your first question misses the point a little: The court was not saying that it would be absurd to criminalize sex between a 12yo and a 13yo. Rather, it would be absurd to apply the "Sexual abuse of a child" statute to reach such a result. If the statute were entitled "sexual contact between minors," or if there were any other reason to think that the legislature actually were trying to criminalize such actions, then I don't think the absurdity argument would have prevailed.

Regarding the absurdity of the Georgia statute, I think the differentiation between oral sex and intercourse in the criminal law is justified on the ground that intercourse is a natural procreative act necessary for the survival of the species, while oral sex is just a disgusting perversion. I'm not saying that I agree with the characterization, but it's there, and as I understand it, the law has recognized that distinction for a long, long time. As Blackstone said in discussing the "infamous crime against nature":

I will not act so disagreeable a part, to my readers as well as myself, as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature.


So I don't think it's really a "fine line" between a law consistent with the centuries-long history of the common law versus an obvious mistake by the legislature.

Finally, regarding the standard, I think the Utah court laid it out: When the interpretation of the statute according to its language would lead to a result so absurd that the legislature obviously did not intend it, then we won't read the statute to reach such a result.

This is not a standard that can be assessed with mathematical precision, but I'm not sure that's a valid objection. I mean, I take it you don't object to the "standard" used to answer the question of "when can a person be convicted of murder."

Basically, you are suggesting that the court should simply ignore reality in favor of words printed on a page. I'm pretty sure that the law has never really required that.
7.18.2007 12:26am
Anon Y. Mous:
To clarify my last post:

Given the actual facts, to charge solely the younger boy with child abuse of the older girl was too absurd for even this prosecutor.
7.18.2007 12:27am
Steve H (mail):
To follow up on Anon Y. Mous's excellent point -- it is ridiculous to believe that "sexual abuse of a child" was meant to criminalize conduct done to a person OLDER THAN THE DEFENDANT.

So, TechieLaw, regarding your response to PatHMV, the reasoning is (1) the statute leads to an absurd result AND (2) we have no reason to believe that the legislature intended an absurd result AND (3) the legislature has even taken steps showing that they did not intend such an absurd result; therefore (4) we will not interpret the statute to achieve this absurd result.
7.18.2007 12:36am
Steve H (mail):
Time to go home. Good night, all.
7.18.2007 12:42am
Kristian (mail):


o follow up on Anon Y. Mous's excellent point -- it is ridiculous to believe that "sexual abuse of a child" was meant to criminalize conduct done to a person OLDER THAN THE DEFENDANT.

I think you need to be careful with the language here:


To follow up on Anon Y. Mous's excellent point -- it is ridiculous to believe that "sexual abuse of a child" was meant to criminalize CONSENSUAL conduct done WITH a person OLDER THAN THE DEFENDANT.

I can sadly envision times where those charges may be accurate.
7.18.2007 1:22am
JR Walker (mail):
Professor Volokh,

I'm a little unclear about why the fact that this is a Utah court is significant? Is Utah shorthand for "conservative"? I lived in Utah most of my life but now work in the Indiana State Court system. I can assure you that Utah's got nothing on Indiana when it comes to conservatism in the judiciary. The religious hegemony of Utah doesn't always necessarily translate into a reliably conservative judiciary.
7.18.2007 2:19am
Public_Defender (mail):

It looks like the Utah Legislature did fix things after the Utah Court of Appeals ruled:

Recent legislative developments bolster our conclusion that the children’s simultaneous delinquency adjudications could not have been intended by the legislature. In reaction to the court of appeals’ disposition in this case, the legislature passed a bill that amended the diversion statute to avoid the application of the child sex abuse statute in similar cases.

The problem is that such a fix is too late to help the person who is already prosecuted.


No, according to what the justices said at oral argument, the problem is that the "fix" depends on prosecutorial discretion to allow diversion, and this case shows that you can't depend on prosecutorial discretion.
7.18.2007 7:02am
Evelyn Blaine (mail):
Calling this "judicial activism" is not very helpful, since that term is usually used to refer to the exercise of judicial review. If you don't like the canon against absurdities or the rule of lenity, take it up with Sir Edward Coke, rather than John Marshall.
7.18.2007 10:01am
Aultimer:

JR Walker: I'm a little unclear about why the fact that this is a Utah court is significant? Is Utah shorthand for "conservative"?


It's significant because

1. Utah is generally socially conservative and the "judicial activism" displayed in the decision would seem like a liberal-minded move given the caricatures of libs and righties offered by commenters on this site (other than PatHMV who seems to want to lead the spin that the far right only ever objected to MISGUIDED judicial activism).

2. Utah has that whole Mormon polygamists with child brides history that it can't or won't leave behind.
7.18.2007 10:11am
PatHMV (mail) (www):
Aultimer, you've got to really view the world through partisan glasses in order to see some kind of "spin" in my remarks, which were pointing out that this case had nothing to do with "judicial activism," one way or the other.
7.18.2007 10:22am
vukdog:

I know this is a blog primarily for addressing legal issues, but isn't there some room in this thread for mentioning that it is America's bizarre attitudes about teenagers as sexual beings that leads to these demented prosecutions?

As the song goes, free your mind and your ass will follow. Until we put away inanities like "abstinence education" as the delusional fairy tales they assuredly are, how can we expect the law to be any more rational than the rest of society?


Robert Epstein has addressed these issues in a new book, The Case Against Adolescence. For a quick interview in Psychology Today go here
7.18.2007 10:32am
TechieLaw (mail) (www):

I think Epstein's ideas about property are really interesting, but the Psychology Today article appears wrong on the science.

See, e.g., this article and this one.

Is Epstein implying that 12 year olds *should* enjoy the freedom to contract, marriage, and full criminal liability including the death penalty?
7.18.2007 11:05am
JRL:
"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"

Heavy petting? She had a baby. I didn't know you could get pregnant from "heavy petting." I knew you could get pregnant from a toilet seat, but not from "heavy petting." Go figure.
7.18.2007 11:37am
Seamus (mail):
This is no more absurd than the situation where a college man and a college woman both get drunk and bump uglies, and each of them is prosecuted for sexual assault because the other couldn't give valid consent.

Oh, wait, that doesn't happen. The *man* is always prosecuted because the woman's drunkenness both vitiates her consent and destroys mens rea, while his drunkenness is irrelevant.
7.18.2007 11:46am
just me:
I share a generally libertarian view of consensual sex for adults, but I'm not persuaded that it's so "absurd" to use criminal law as a tool to punish both parties for underage sex.

After all, if a 12 and 13 year old are caught drinking alcohol together, might we not punish both? Drinking is OK for adults; illegal for kids. It's illegal mostly to protect them from themselves, i.e., paternalist. And when we catch 'em, there may be strong arguments for steering to something other than criminal law, but the criminal law is available.

So if two kids use, as "substance" abuse, each others bodies, why is it so different? Only because of the libertarian atmospheric with sex? But they're KIDS.

Heck, apart from driving -- which is not a danger for 12-year-olds, generally -- I'd rather have my kids drink once than have sex once at that age, and risk pregnancy.

In fact, the alcohol use has a better claim on "victimless" status than sex, as the conceived child here is now arguably a victim. Being born to a child that young is associated with all sorts of challenges. We can even put aside whether being aborted counts for anything, as we know that some 13 year olds do proceed to birth, so there's at least potential harm there.

So I ask everyone - why is alcohol different?
7.18.2007 11:50am
PatHMV (mail) (www):
just me, did you read the opinion? The statute involved? It's an absurd result in this case because the statute, while technically applying by its language to this conduct, clearly contemplated a victim and a perpetrator. THIS statute was not born of paternalism generally but of a desire to protect young children from actual molestation. Thus, applying THIS statute to THIS particular conduct would be an absurd result. As the judge made very clear, the legislature could quite rationally decide to pass a law against this kind of conduct, for the reasons you describe among others, but they did not intent to do so here, and reading THIS language to accomplish that result would be absurd.
7.18.2007 12:06pm
Captain Holly (mail):
It's significant because

2. Utah has that whole Mormon polygamists with child brides history that it can't or won't leave behind.


The overwhelming majority of Utahns left it behind over 100 years ago, aside from small, isolated, inbred rural polygamist groups that are not members of the LDS Church.

It seems that everyone else can't let it go.

And the polygamy as it was practiced back then was far different than the stereotype you cite: Not a single one of my three polygamous male ancestors married a "child bride". In fact, one married two widows older than himself for the sole purpose of providing them with a home and financial support.
7.18.2007 1:31pm
The Cabbage:
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.

Judicial c**kpunch
7.18.2007 3:13pm
Andrew J. Lazarus (mail):
<i>Heavy petting? She had a baby. I didn't know you could get pregnant from "heavy petting." </i>But the statute at issue criminalized heavy petting too.
7.18.2007 3:26pm
Clayton E. Cramer (mail) (www):

The primary job of lawmakers is to make laws. If and when they realize that they have screwed up and written a law saying something that they did not mean, they should immediately meet and correct the law. If they like the law they have made, then do we really want judges or prosecutors "fixing things"? Our journalists should be demanding answers from the Utah lawmakers.
Some years back, there was a case out of Bakersfield, California, where a guy running a convenience store was arrested and convicted for carrying concealed inside his own store. While the California Court of Appeals looked at the legislature's original intent and decided that they did not intend to criminalize a shopkeeper being armed (even concealed), and thus overturned the conviction, the legislature got the message, and clarified the language.

Similarly, a woman who shot a guy who forced his way into her home was prosecuted in the early 1980s. I think she was convicted--after all, maybe he was just taking a short-cut through her home--why would she think that someone who force entry might intend her great bodily injury> The legislature had the good sense to revise the statutes to clarify that if someone who doesn't live there and forces entry into your home creates a presumption that the person intends great bodily injury or death.

It would appear that this statute isn't properly written. Sometimes the most effective way to get a bad law repealed or fixed is to prosecute it, vigorously. A court could even uphold a conviction that they found ridiculous by pointing out--loudly--"the statute as written is incredibly stupid, and the leigslature needs to fix it."
7.18.2007 4:53pm
Clayton E. Cramer (mail) (www):
By the way: Z.C. clearly did something very wrong here--getting pregnant. As much as I agree that the particular statute does not appear to have been intended for this case, it does not seem that the penalty imposed by the juvenile court was particularly severe, considering the consequences.
7.18.2007 5:07pm
M. Simon (mail) (www):
Anon Y. Mous says:
I think the boy is extremely lucky that the ages weren't reversed. Had he been the one older than the girl, combined with the fact that the girl became pregnant, it would have been much easier for the prosecutor to decide that the girl was the victim. Given the actual facts, to charge the younger boy with child abuse of the older girl was too absurd for even this prosecutor. 7.17.2007 11:24pm

Finally a prosecutor who admits filing charges on to too absurd legal theories.

You have to wonder if we have so cleared the criminal problem in this countries that prosecutors have to go reaching for not too absurd charges in order to keep busy?
7.18.2007 6:48pm
David Schwartz (mail):
Maybe I'm missing something, but what's wrong with the following definition of judicial activism:

Judicial activism is when a court decides a case based upon what they think the equitable outcome is, outside of the scope of their equitable powers, when their ordinary practice of interpreting and applying the law would cause a result they feel is unjust. Essentially, it's when they "fix" what they feel is an equitable defect in the law even when the inequitable outcome of the law was within the power of the legislature to command.

Essentially, it's when a judge finds a way to get the outcome he things is fair, even if that means picking a much weaker legal argument over a stronger one.
7.18.2007 6:56pm
Steve H (mail):
I think that definition of judicial activism is fine, but by its own terms, it does not apply to this case. The court didn't think that it would be "unfair" or "inequitable" to apply the statute to these kids. The court held that the legislature DID NOT INTEND the statute to apply to these kids. So the Court applied the legislature's statute EXACTLY THE WAY THE LEGISLATURE INTENDED.

I guess that's been my beef with the whole "judicial activism" characterization. There are plenty of instances where the Utah Supreme Court applies statutes in a way that the legislature may not have intended, or holds that such statutes are unconstitutional under the Open Courts Provision. But this is not one of those cases.

Here we have the court putting into effect the will of the legislature. That is a strange breed of judicial activism.
7.18.2007 7:55pm
Steve H (mail):
Sorry for the caps. I meant to change those to italics.
7.18.2007 7:57pm
TechieLaw (mail) (www):
Steve:

You're splitting hairs. When he court held that the legislature did not intend the law to apply to these kids, the court was basically saying that it would be unfair to do so, regardless of the language used. I agree with David that this court was looking for a reason -- *any* reason -- to argue that the outcome was ridiculous.

Tell me what should happen here: A legislature discusses a law making some filing due on December 31st. In its final version, for some reason not in the debate record, the statute says that the filing is due on December 30th. If somebody misses the deadline by filing on the 31st, should a court look to the "intent" or to the final wording of the statute to determine the outcome?

I can virtually guarantee that if this was a filing for welfare distributions, and a court said that the legislature had clearly intended to have the filing due on the 31st, people would be screaming "judicial activism" and that the judges had supplanted their versions of "fairness" for a "gotcha!" that had been written into the law.

You're defining "judicial activism" rather narrowly as applying only to constitutional issues. I would argue that the phrase should apply any time a court decides to reform a statute as this Utah court has done. Even if the law had been passed within the past few years, it's the responsibility of the legislature to write laws that mean what they say rather than asking courts to correct their screw-ups.

I'm not saying it's the wrong thing to do -- in fact, I think it was the right thing to do -- but let's call a spade a spade.
7.18.2007 8:24pm
Rich Rostrom (mail):
What if a 12-year-old boy seduced a mentally retarded adult woman? An adult male would be punished. Why would a child be excused? If he is not excused for that, why should he be excused for taking advantage of a child with the same mental age?

Bottom line: kids should not have sex. They do not have the capability of giving informed consent. Anyone who induces a child to have sex commits statutory rape - including another child. It may appear that neither child influenced the other, but that's unlikely: one of them is almost certainly dominant.

When a child commits a serious crime, the precepts of juvenile justice may call for mercy or mitigation on the basis of the perpetrator's ignorance and lack of judgment. But such mitigation should be entirely discretionary; it should be granted only after positive demonstration of the perpetrator's diminished capacity, regardless of calendar age.
7.18.2007 9:36pm
vukdog:
TechieLaw:

I think Epstein's ideas about property are really interesting, but the Psychology Today article appears wrong on the science.

Epstein has an entire chapter on the "teen brain" and he takes umbrage with the studies you cite and the way they are portrayed in the media. I'm not an expert and I'm short on time but if your interested in his argument go here to read his recent article in Scientific American Mind.

Is Epstein implying that 12 year olds *should* enjoy the freedom to contract, marriage, and full criminal liability including the death penalty?

Yes, I think, at least with respect to freedom to contract and marriage. I haven't finished reading the book yet, but he seems to support some type of competency based test (like a driver's license) that would although some teens (not necessarily 12 year olds) these rights.
7.18.2007 11:31pm
Malvolio:
What if a 12-year-old boy seduced a mentally retarded adult woman?
What if a mentally retarded adult seduced another mentally retarded adult? Would you see them both in jail?
Bottom line: kids should not have sex. They do not have the capability of giving informed consent.
You are probably correct, but someone who cannot give informed consent also cannot form mens rea, and consequently cannot be convicted of most crimes.
7.19.2007 12:29am
methodact:
Not competent to form requisite consent yet sufficiently old enough to form mens rea. Another so-called slam-dunk law.
7.19.2007 1:14am
Rich Rostrom (mail):
Malvolio: now that I think about it, the situation is not symmetrical. A person may have mens rea to commit a crime while lacking competence to give informed consent.

Furthermore: Statutory rape and similar laws presume that anyone in a protected category cannot give informed consent, even though de facto some can. The law includes all, to protect the fraction (50%? 20%? 10%) who are vulnerable. That is because it could be disastrous to presume competent a class of persons of whom even 10% normally lack actual competence, or to allow an individual actor, who is an interested party, to have any discretion in judging competence of another.

ISTM that the violation occurs whenever anyone induces a member of a protected class to give consent which the other is de jure incompetent to give. The protection has to be absolute.

Does that mean that if two 15-year-olds have sex, both commit statutory rape? Yes. Each of them is old enough to know that sex with a 15-year-old is illegal. Neither is old enough to be presumed able to give informed consent.

If a 15-year-old signs a contract, it is not enforceable on him because he is not old enough. But if the contract is a fraud on the other party, the 15-year-old can be charged. Lack of competence and mens rea, at the same time. Indeed, the lack of competence could be part of the fraud: the 15-year-old signs knowing that he can get out at will.
Suppose both parties are underage, and both conceal it from the other for fraudulent ends: are not both guilty?
7.19.2007 8:34pm
methodact:
Similar to taxation without representation. Kids can be taxed without a say in the matter, simply because they cannot vote. And of course they would face a jury of their peers.
7.19.2007 8:54pm