This month the S.C. Supreme Court affirmed the requirement of lifetime sex-offender registration and lifetime electronic monitoring of juveniles who are convicted of criminal sexual conduct in the first degree. It’s a horrible case: a 15-year-old boy was accused of forcing oral sex and attempting anal sex with a 5-year-old child. As a consequence, he will be required to register every day 90 days for the rest of his life on a public, searchable database, and he will be required to wear an ankle monitor 24 hours a day for the rest of his life.
The law as it applies to juveniles is just wrong. The Court’s opinion makes no mention of whether the child’s attorney presented evidence at the hearing as to this specific child’s danger to re-offend or the circumstances that led to the child committing the crime. The Court sweeps aside the constitutional arguments and applies the same rationale that it has applied to uphold the requirements as to adult offenders. This ignores the reality that teenagers are not adult offenders and there needs to be a line drawn somewhere.
When a fully grown, mature, adult individual commits an act such as this on a five-year-old child, most people can understand the need to separate that person from society and to constantly monitor that person if they are released from prison. We can ignore the punitive effect of the registry and monitoring and pretend that it is something else. But at what point do we give up on a teenager who is not yet fully developed and decide that, instead of providing them with help and redirection, we will force them to wear an ankle monitor and endure public shame until their death even if that is 70 years from now?
Most children who commit sexual acts on other children do it because they are acting out their own abuse. For example, this case came to light because the five-year-old victim was attempting to have sex with another child. Do we think that the 15-year-old’s acts were motivated by something different? Maybe, but it is likely that the 15-year-old was struggling with their own sexual trauma and was acting it out even if it was at a later age. Surely there is a way that we can help children to overcome sexual abuse without causing more harm to them?
The United States in Roper v. Simmons held that the execution of juveniles was unconstitutional, noting three differences between juveniles and adults:
- Juveniles have “[a] lack of maturity and an underdeveloped sense of responsibility.”
- “[J]uveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.”
- “[T]he character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.”
According to the S.C. Supreme Court, these factors do not matter. Because the stated purpose of the statute is to aid law enforcement and to protect the public, it is not punishment. Therefore, it is ok to impose these
punishments “non-punitive acts” on juveniles as well as adults:
The purpose of the sex offender registry has nothing to do with retribution, and any deterrent effect of registration derives from the availability of information, not from punishment. Instead, the purpose of the registry and the electronic monitoring requirement is to protect the public and aid law enforcement. We defer to the Legislature’s determination that these purposes are equally served by requiring registration of adults and juveniles.
Our approach to juvenile justice is out-dated, ignores all available science, and often harms children and society. Whether it is the courts or the legislature, someone needs to step up and acknowledge that there is a better way to handle juvenile offenses. Registration and monitoring for a period of time may be reasonable, but should a person endure a 24-hour-a-day ankle monitor and public shaming 30 years after the offense occurred if they have not re-offended? 10 years later?