Children as Predators: Courts Should Handle Juvenile Sex Offenders and Adult Sex Offenders Differently

• Jurisdiction: United States,Federal
• Citation: Vol. 52
• Publication year: 2022

52 Creighton L. Rev. 217. CHILDREN AS PREDATORS: COURTS SHOULD HANDLE JUVENILE SEX OFFENDERS AND ADULT SEX OFFENDERS DIFFERENTLY

CHILDREN AS PREDATORS: COURTS SHOULD HANDLE JUVENILE SEX OFFENDERS AND ADULT SEX OFFENDERS DIFFERENTLY

Kristyn Wong-'20

I. INTRODUCTION

What if a childhood mistake punished you for the rest of your life? ^[1] This was the case for Jacob C., who was tried and found guilty of criminal sexual conduct at the mere age of eleven. ^[2] Jacob was placed on the sex offender registry at the age of eleven for touching, not penetrating, his sister's genitals. ^[3] Jacob, initially placed on the public registry when he turned eighteen, faced relentless humiliation and harassment from his school peers. ^[4] Eventually, Jacob married and had a daughter, but later divorced. ^[5] Although Jacob initially had joint custody of his daughter, he lost custody when he violated registration requirements by living too close to a school and by failing to register a new address after a period of homelessness. ^[6] Jacob could not fight his felony conviction for failure to register because he could not afford a lawyer. ^[7] The mistake he made at the age of eleven now and forever defines his life. ^[8]

This Note will discuss the dangerous and controversial practice of sentencing juvenile sex offenders. ^[9] First, this Note will discuss the Bush administration's Adam Walsh Child Protection and Safety Act of 2006, ^[10] ("Adam Walsh Act") which includes the Sex Offender Registration and Notification Act ("SORNA") ^[11] creating the sex offenderregistry. ^[12] Since the United States Supreme Court has yet to hear a juvenile sex offender case, this Note will discuss what the Court has said on the topic of juvenile offenders. ^[13] This Note will then discuss the Pennsylvania Supreme Court's determination regarding the punitive effects of SORNA on juvenile sex offenders. ^[14] Next, this Note will look at the split between the United States Court of Appeals for the Eighth and Eleventh Circuits regarding whether a juvenile offender may be required to register as a sex offender under SORNA. ^[15] This Note will also discuss what some state courts have determined when addressing lifetime registration requirements for juvenile sex offenders. ^[16]

Ultimately, this Note will argue that a lifetime registration requirement for a juvenile sex offender constitutes, for all intents and purposes, a life sentence. ^[17] This Note will examine SORNA's punitive effects and the purpose of juvenile court system. ^[18] Next, this Note will consider Pennsylvania's process of assessing juvenile offenders as a solution to the problem of how to handle juvenile sex offenders in the justice system. ^[19] This Note will address the potential objection from within SORNA, which states that only juveniles aged fourteen years and older who have committed aggravated sex abuse, or higher crime, will be required to register. ^[20] However, this Note will rebut this objection by examining why an irrebuttable presumption that a juvenile offender is at a high risk of reoffending is inappropriate. ^[21] Finally, this Note will address why a juvenile does not fall within the meaning of the term sex offender. ^[22]

II. BACKGROUND

A. Congress Passes The Sex Offender Registration and Notification Act

In October 1989, Jacob Wetterling was on his way home from the store with his brother, Trevor, and his friend, Aaron. ^[23] The three boys were accosted by a masked stranger who told both Aaron and Trevorto run into the woods and not look back or else he would shoot them. ^[24] Jacob Wetterling was never seen again. ^[25] In 1994, Jacob's parents successfully lobbied Congress to include the Wetterling Act ^[26] within the Violent Crime Control and Law Enforcement Act of 1994. ^[27] The Wetterling Act requires States to maintain registries of those convicted of sexually violent crimes against children and offenders to continuously update their addresses. ^[28] Although the Wetterling Act mandated registration at the government level, it fell short because it did not require the registry be disseminated to the public. ^[29]

In 1994, seven-year-old Megan Kanka was murdered in her New Jersey neighborhood by a neighbor who happened to be a convicted sex offender. ^[30] Megan's family petitioned the New Jersey legislature to enact legislation that would require the state to notify communities of any sex offenders living in the community. ^[31] As a result, the United States Congress passed an amendment to the Wetterling Act in May 1996. ^[32] This amendment, known as Megan's Law, ^[33] changed the wording of the Wetterling Act from may release registration information to shall release registration information. ^[34]

In July 1981, six-year-old Adam Walsh was abducted seventy-five feet away from his mother at a shopping center. ^[35] Adam's family created the National Center for Missing and Exploited Children and worked with Congressmen to draft legislation to establish a national sex offender registry and implement mandatory notification laws. ^[36] The Adam Walsh Act was signed into law by President Bush. ^[37] The Adam Walsh Act expands both the definition of sexual offenses and the number of individuals that fall under its purview. ^[38]

SORNA is contained within Title I of the Adam Walsh Act. ^[39] SORNA defines the term sex offender as one who has been convicted of a sex offense, and provides three classifications of sex offenders. ^[40] The first classification is a tier III sex offender, which includes those who have committed an offense punishable by more than a one year imprisonment. ^[41] The tier III sex offender classification also requires the offense be either (1) comparable to an aggravated sexual abuse, sexual abuse, or abusive sexual contact; or (2) involve the kidnappingof a minor. ^[42]

The second classification is a tier II sex offender, which includes those who have committed an offense that is punishable by more than a one year imprisonment. ^[43] This offense must also (1) be comparable to sex trafficking, coercion and enticement, transportation with intent to engage in criminal sexual activity, abusive sexual contact; or (2) involve the use of a minor in a sexual performance, solicitation of a minor to participate in prostitution, or the production or distributionof child pornography. ^[44]

The last classification is a tier I sex offender, which serves as the catch all for sex offenders who are neither a tier II nor a tier III sex offender. ^[45] SORNA requires every sex offender to register in the jurisdiction where he or she lives and keep the registration current. ^[46] The length of time that an offender must continue to register as a sex offender differs depending on which tier he or she falls in. ^[47] The registration period is fifteen years for Tier I sex offenders, twenty five years for Tier II sex offenders, and lifetime for Tier III sex offenders. ^[48] As previously indicated, SORNA defines the term sex offender as one who has been convicted of a sex offense. ^[49] SORNA specifies that the term convicted includes juveniles who have been adjudicated delinquent. ^[50] The caveat is that this only applies if the offender is at least fourteen years old and the offense was comparable to aggravated sexual abuse. ^[51]

B. THE SUPREME COURT'S TAKE ON JUVENILE SENTENCING

While the United States Supreme Court has not addressed the issue of lifetime registration requirements for juvenile sex offenders, the Court has addressed the issue of life-without-parole sentences for juveniles in Miller v. Alabama. ^[52] In Miller, the United States Supreme Court held that imposing life sentences without the possibility of parole on juveniles was unconstitutional because it violated the Eighth Amendment right against cruel and unusual punishment. ^[53] Two fourteen-year-old boys, in two separate cases, were convicted of murder and sentenced to life without the possibility of parole. ^[54] For one boy, petitioner Jackson, the Arkansas Supreme Court disagreed with the argument that a life-without-parole sentence for a fourteen-year-old violated the Eighth Amendment. ^[55] For the other boy, petitioner Miller, the Alabama Court of Criminal Appeals held that Miller's life-without-parole sentence was not overly harsh in light of the nature of his crime. ^[56]

Both petitioners Jackson and Miller appealed to the United States Supreme Court, which granted certiorari and consolidated the cases. ^[57] The petitioners argued that the lower courts erred in affirming their life-without-parole sentences because those sentenced violated the Eighth Amendment. ^[58] The Court reversed and held that the Eighth Amendment forbids life-without-parole sentences for juveniles. ^[59] The Court reasoned that juveniles are different than adults for purposes of legal proceedings because juveniles have diminished culpability and greater possibility for reform and rehabilita-tion. ^[60] For these reasons, the Court determined that juveniles are less deserving of severe punishments. ^[61] Specifically, the Court relied on precedent that noted significant differences between juveniles and adults. ^[62] In light of the neurological differences between juveniles and adults, the Court reasoned that the imposition of life-without-pa-role sentences on juveniles prevents courts from considering juveniles ages and the hallmark features...