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October 8, 2013

How should the law — federal or state — deal with a 10-year-old serious sex offender?

The question in the title of this post is prompted by this new article from the Wall Street Journal about a remarkable federal juvenile prosecution.  The article is headlined "Federal Youth Case on Trial: Prosecution of 10-Year-Old on Sex Charges Stokes Debate Over Juvenile Justice." Here is how it starts:

Two years ago federal prosecutors won a delinquency finding against a boy accused of engaging in sex acts when he was 10 years old with other young boys on an Army base in Arizona—one of the youngest defendants ever pursued by the U.S. Justice Department.

The case, now being reviewed by the Ninth Circuit U.S. Court of Appeals, could open a new front in a long-running debate about how to handle juvenile sex offenders, whose cases generally have been tried in state, not federal, courts.  The records are sealed because the defendant was tried as a juvenile, but the case came to light in September at an appellate hearing in San Francisco that was open to the public.

The boy's appeal involves a thorny legal question: Should children be prosecuted for sex acts with other children under a federal law that the boy's lawyers say was designed to target adult predators?  The fight also highlights a broader debate over tagging juveniles as criminal sex offenders, a label that can land them a spot on registries that track offenders and limit where they can live.

The boy was found delinquent — guilty in juvenile-court parlance — on charges of aggravated sexual abuse against five boys between the ages of 5 and 7, under a statute that makes it illegal to engage in a sexual act with a person younger than 12 regardless of whether physical force is involved.  The boy was sentenced to five years' probation, including mandatory psychological treatment, lawyers on the case said.  He must also register as a sex offender in certain states, according to his lawyer.

"I think this is really overreaching on the part of the government," Keith Hilzendeger, a federal public defender representing the boy, said in an interview. He added that he had "never heard of a federal case where a person is 10."

Assistant U.S. Attorney Bruce Ferg said outside the courtroom that federal prosecutors took the case because of "the severity of the conduct" and because it took place on Fort Huachuca, the Army base where the boys lived with their families. "My opinion is this is the best thing that could've happened to the kid," said Mr. Ferg, adding that the case included allegations of anal penetration, repetitive behavior and threats.  He said that prosecutors considered, "What can we do with this child to make sure this doesn't happen again?"

October 8, 2013 at 06:01 PM | Permalink

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As the article indicates,children 10 and younger only engage in this kind of predatory sexual acts if they were themselves abused by adults at a young age. I have a friend who is a Foster Parent to such a child here in Kentucky,who is now 15 years old. "Paul" was sexually abused (raped) by his own father (with the knowledge of his mother) between the ages of 2 and 5. His father served time in state prison for rape of a child and incest. Paul, who has angry feelings towards his parents, whose parental rights were terminated when he was 5 years old) has acted out violently against other children during other children during play, and has behaved violently against a few teachers at school. He has also tried to engage in sexual acts with other children, given his advanced knowledge of sexual acts for a young child. The Commonwealth of Kentucky has poured money and therapy resources into trying to help Paul. At school, he has his own, full-time personal teacher's assistant. While Paul can be sweet and is an intelligent child, many adults fear that after he times out of Foster Care at age 18, it is only a matter of time until he ends up in prison. There are no easy or certain ways to "fix" children who have been sexually abused at a young age. There is, however, a strong argument that during minority, child victims of adult sexual abuse should not be criminally prosecuted for acting out sexually against other children. They need love and psychiatric help,not prosecution, even as juvenile offenders.

Posted by: Jim Gormley | Oct 8, 2013 6:35:34 PM

good comment!

Posted by: Randy | Oct 8, 2013 6:51:33 PM

Jim Gormley --

"While Paul can be sweet and is an intelligent child, many adults fear that after he times out of Foster Care at age 18, it is only a matter of time until he ends up in prison."

Bingo, unfortunately.

The very unhappy truth of the matter is that the only thing society can do now is try to limit the extent of the damage this person will do once he reaches adulthood.

He deserved protection he didn't get. Whether we like it or not, his future victims now also deserve protection. We are derelict if we don't give it to them.

Posted by: Bill Otis | Oct 8, 2013 7:50:50 PM

They could sterilize him so there is not another generation.
That would could some things off without cutting a thing off.

Posted by: Liberty1st | Oct 8, 2013 9:06:46 PM

Like a 10 year old as to accountability. Like any one else as to risk.

Posted by: Tom McGee | Oct 9, 2013 1:08:50 AM

Jim: I have no dispute with you, since you are not a lawyer. Most abused children do not abuse others. This child abused and raped other children because he has conduct disorder, loves sex and hurting people. The crime meter is whirring pretty fast and will accelerate with age. If he was abused, it helped him discover sex and that he liked it, not that he was traumatized.

The view that ultra-predators are victims is a lawyer propaganda lie. The lawyers who promulgate it are of the lowest form of vermin, and deserve to be lashed by victims' families, then killed if they do not learn.

Things are different in the past 5 years. No more experience of abuse that they liked and repeat with others. Now, children watch freely available adult porn. Like it, of course, and try to duplicate with available children, since adults are not available.

The crime meter is whirring so fast on this 10 year old, only incapacitation is worthy of consideration. The defense lawyer needs to be beaten, and especially any judge loosing this predator releasing him prior to the maximum detention permitted by law. Then he should be civilly committed and stay in a treatment facility for the rest of his life. Ideally, he would be executed after age 14.

Posted by: Supremacy Claus | Oct 9, 2013 4:12:34 AM

Bill are you saying that because somebody today believes this child will, as an adult, offend; society should take protective measures now by incarcerating him? Otherwise, I don't really understand what the term, "future victims" means in this sentence: "Whether we like it or not, his future victims now also deserve protection. We are derelict if we don't give it to them."

Posted by: C60 | Oct 9, 2013 7:34:00 AM

Will he get opportunities for treatment and therapy while he is in juvenile detention before he reaches maximum age, so as to decrease his liklihood of re-offending when he reaches adulthood?

Posted by: william r. delzell | Oct 9, 2013 9:28:05 AM

C60:

You stole the words right out of my mouth. Who are the future victims and HOW do we protect them? The state provides the illusion of protection by dumbing everybody down to the lowest common denominator and becomes that which they proclaim to disdain, i.e., an all-encompassign and controlling busybody of bureaucratic inclinations and tendencies. Look at the "zero tolerance" policy of our public schools to "protect" the children. By protecting the children you are destroying them as individuals and at an extreme cost!

Anyone who tells you that the PRIMARY function of the state is to provide for the safety and security of its citizens has not thought the whole thing through. I, for one, would choose NOT to live in this kind of society. That the state says with any declaration of certainty that they know what is right for you under all conditions is nothing but a Fool's folly. Unfortunately, many of our laws are geared toward this idea.

The primary function of our government and justice system must be to protect the rights of individuals as identified in the Constitution, nothing more and nothing less.

Posted by: albeed | Oct 9, 2013 10:05:03 AM

C60 --

Because we did not deal seriously enough with the father when he was brutalizing this kid (and, yes, "deal with" means "imprison") we have the tragedy and the very significant danger that now exists.

We can do one of three things going forward: (1) hope with our smiley-faces on that our "treatment" and "rehab" will fix the problem, even in the face of the strong evidence that it won't; (2) adopt the same boys-will-be-boys attitude we did with his father, who either didn't get imprisoned or didn't get imprisoned until it was way too late; or (3) get ahold of ourselves, understand that we need to stop this cycle before it continues, and step up.

I will leave it to you to decide with of the three a truly humane and caring society will undertake.

And yes, "future victims" count, notwithstanding the fact that their specific identities are not known now. They're still human beings.

Posted by: Bill Otis | Oct 9, 2013 10:20:55 AM

And you protect future victims of Paul by not treating him with kid gloves for the behaviors that have already been described. Given that he acts with violence already it wouldn't even be particularly necessary to add additional punishment for his sexual transgressions.

Posted by: Soronel Haetir | Oct 9, 2013 11:49:54 AM

You can listen to the audio of the argument here:
http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011295

Posted by: Mark Allenbaugh | Oct 9, 2013 11:57:16 AM

'And yes, "future victims" count, notwithstanding the fact that their specific identities are not known now. They're still human beings.'

that sounds so much like something that might come out of a former prosecutors mouth too, what a horseshit statement must of learned it from one of those brainwashing hate training seminars that the DOJ is constantly sending their employees too at taxpayer expense

Posted by: Randy | Oct 9, 2013 7:05:15 PM

Randy --

"that sounds so much like something that might come out of a former prosecutors mouth too, what a horseshit statement must of learned it from one of those brainwashing hate training seminars that the DOJ is constantly sending their employees too at taxpayer expense"

And that sounds like a wonderfully indicative summary of the feeling defense lawyers have for (1) future, or any, crime victims, and (2) punctuation.

Your briefs must be a real treat.

Posted by: Bill Otis | Oct 10, 2013 10:07:03 AM

Unless the entire body of law the US has in sex crimes. His life is OVER. Might as well shoot his ass now and put him out of his future misery!

Posted by: rodsmith | Oct 10, 2013 4:12:32 PM

'Your briefs must be a real treat.'

Hah, your such a parody, kiss my ass.

Posted by: Randy | Oct 11, 2013 11:19:15 PM

Randy --

It's so cool when the pro-defense side shows its (1) analytical acumen and (2) maturity. Please, keep commenting!

Posted by: Bill Otis | Oct 12, 2013 10:03:45 PM

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