Should a 15-year-old boy who twice had sex with his 13-year-old girlfriend, then sexted her nude photos of himself be prosecuted, spend 11½ months in juvenile detention and be placed on a juvenile sex offender registry?
That question lies at the heart of a case before the Kentucky Supreme Court.
In 2011, the boy, B.H., then in eighth grade, and his seventh-grade girlfriend, C.W., had been dating 1½ years when they had consensual sex at her house in 2011. He texted her two nude photos of himself, and she texted him one of herself.
The girl’s mother discovered the photos on her daughter’s phone, then found out she was having sex with B.H. The mother then had a warrant for the boy issued by the county attorney’s office in Woodford County near Lexington, Ky. He was charged with possessing matter portraying sexual performance by a minor, a felony, and sexual misconduct, a misdemeanor.
B.H.’s parents did not bring charges against her. Only C.W. was charged in the case.
“If the [sexting] law is interpreted in the fashion that the commonwealth has presented in this particular case, given current statistics, about a third of all youth in America engage in this sort of behavior and could be charged with a felony sex offense,” said assistant public advocate John Wampler, who is representing B.H.
In a legal brief, Wampler argues that because only B.H. and not C.W. was charged, the boy was denied equal protection guaranteed under the U.S. Constitution.
“There is no dispute that B.H. and C.W. had sex, and it is clear that the sex was consensual,” Wampler wrote. “Yet B.H. is painted as villain, C.W. as victim.”
The Kentucky attorney general’s office countered in a brief that penalizing only the boy was justifiable because he had initiated the sexual behavior and he had a prior indecent exposure offense.
But the previous offense, in which the boy exposed himself to a neighbor, should have no bearing on the constitutional issues in the current case, Wampler said.
He contends B.H.’s due process and privacy rights were also violated.
In court papers, the attorney general’s office maintained that by pleading guilty, B.H. ceded his right to challenge the constitutionality of his conviction — a claim Wampler disputes.
The attorney general’s office declined to comment on the case beyond its brief.
In Kentucky, nobody under 16 can legally consent to sex.
Wampler said the legislature did not intend to stipulate that those under 16 are too immature to engage in sex with an adult but at the same time hold them criminally responsible for sex with another juvenile.
The Philadelphia-based, nonprofit Juvenile Law Center and the nonprofit Children’s Law Center of Covington, Ky., filed a friend-of-the-court brief in which they argued sexual explorations for teens are normal.
“Criminalizing these sexual explorations among consenting teens conflicts with youths’ sexual development,” the brief stated. “Moreover, it is inconsistent with the law.”
The brief cited recent U.S. Supreme Court decisions, including the landmark 2012 Miller v. Alabama decision, in which the high court found adolescents’ “lack of maturity and underdeveloped sense of responsibility lead to recklessness, impulsivity, and heedless risk-taking.”
In their brief, the youth law centers said: “Sexual experimentation fits into these behaviors. Learning to think of oneself as a sexual being and dealing with sexual feelings is an important part of adolescence.”
Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, said in an interview, “It’s consensual conduct so we can as parents be troubled, we can judge, we can lecture our children about engaging in risky behavior. But the notion that this is something that we should be prosecuting in juvenile court as if it were criminal behavior certainly strikes us at the Juvenile Law Center as really silly, frankly.”
Speaking of B.H., she said: “It doesn’t make any sense. He is not a criminal. He is exploring his own sexuality, as an adolescent.”
Levick noted required treatment for juvenile sex offenders can often be traumatic and include self-disparaging and psychologically damaging statements. In their brief, the two youth law centers pointed to treatment programs in which youths were required to make statements such as: “I am a pedophile and not fit to live in human society” and “I can never be cured.”
And subjecting teens who engage in consensual sexual behavior to sex offender treatment could lead to psychological damage, increase the likelihood of future criminality and of victimhood by exposing them to more serious adolescent offenders, the brief says.
B.H., who is now 19, originally pleaded guilty in 2011 in Woodford District Court, and the sexting charge was amended from a felony to a misdemeanor attempted sexting charge.
After appeals to the Woodford Circuit Court and the state Court of Appeals failed, B.H. appealed to the state Supreme Court.