December 09, 2006
Downright bizarre
Here we have an interesting case: a minor girl is both the perpetrator and victim of the crime with which she was charged, namely having sex with a minor under 14. The minor in question was her boyfriend. She's 13, he's 12.
I mean, say what you want about the advisability of "starting early" as it were, it does not seem that this is the kind of thing the law is supposed to produce. As one justice noted, the only thing that approaches this kind of double-treatment is dueling. It's going to be rather difficult to assert that there's a common thread there.
Law is a constantly evolving beast. Yes, the legislature makes statutory law, but a law that is incapable of change is doomed. This has less to do with the fact that society and culture change - I don't think the law in this case should be amended to allow children to have sex - but because the people who make law are not only finite beings, but they're also subject to political pressures. This can produce laws which don't make sense, are badly drafted, or downright vague. And a law which produces results such that both individuals involved are mutual perpetrators and victims has got to be flawed.
Why? I don't really disagree, I just honestly don't see your point. Doesn't the comparison to dueling just show how this case actually does make sense?
I'm really enjoying your law-related posts.
Posted by: nick at December 9, 2006 08:15 PMIf abortion were illegal, wouldn't women who got abortions be both perpetrator and victim, although I suppose not in the same sense?
I see your point, though - I can't imagine the law was intended to be used this way. It wasn't worded precisely enough, I'd say.
Posted by: Evan Donovan at December 10, 2006 01:32 AMNick: The way the law is written now, these kids can be charged with "rape of a child" under UC § 76-5-402.1, which is a first-degree felony punishable by a minimum of six years in jail. Arguing that the legislature intended preteens to do hard time is going to be a really hard sell. Also not the fact that UC § 76-2-301 states that "a person is not criminally responsible for conduct performed before he reaches fourteen years of age." This would seem to suggest that the legislature did not intend children under 14 to be charged with serious crimes in the same way that persons older than that are. The only reason the kids can be tried at all is because statutory rape is a strict liability offense which requires no particular level of mental culpability or, as a matter of law, any mental culpability at all.
There's also a general principle of criminal law that when a statute considers a person in the definition of a crime but does not specifically criminalize their behavior, they cannot be charged with that crime. For example, a statute that prohibits transporting a woman across a state line for the purpose of prostitution cannot be used to charge a woman who drives herself across a state line for that purpose. It can only be used to nail someone else who transports her. The argument is almost exactly analogous here, in that we're considering "rape of a child", and it seems that the law considers them but does not criminalize them.
Evan: The abortion example is not analogous. The woman would only be a victim if it were done against her will. From a legal perspective, the victim of an abortion is never the woman unless it were done against her will. But that's already illegal, regardless of abortion statutes, as performing non-consensual medical procedures is a serious offense to begin with.
Posted by: ryan at December 10, 2006 08:59 AMYour points are well-taken. I figured that a woman would not be a victim if she chooses to have an abortion (if that act were illegal), although it seems like any reasonable law would consider her guilt differently than the abortionist's. But that's a totally different issue.
Here I think you're absolutely correct: what the teens did was morally wrong, but not punishable under the statute in question.
Posted by: Evan Donovan at December 12, 2006 07:27 PM