Is Underage Sexual Activity Criminal?

March 11, 2015


In a case that has captured national attention, the Kentucky Supreme Court will hear arguments about whether voluntary sexual conduct between children should be prosecuted as a crime.


The eighth-grade boy and his seventh-grade girlfriend had been dating about 1½ years when they decided to have sex, which they did twice at her house when nobody was home.


The boy, 15, also texted two nude pictures of himself to the girl, 13, who sent him one back.


When the girl's parents found the pictures on her phone, they took out a warrant in Woodford Circuit Court, and the boy was charged with sexual misconduct, a misdemeanor, and possessing matter portraying a sexual performance by a minor, a felony.


Even though "B.H," as the boy is identified in court records, was too young to consent to sex — the minimum age is 16 in Kentucky — he was charged with a crime for engaging in it. And even though the boy's parents could have gone to the county attorney's office and taken out charges against the girl — just as C.W.'s parents had done — only B.H. was charged.


In a case that has captured national attention, the Kentucky Supreme Court will hear arguments Thursday about whether voluntary sexual conduct between children should be prosecuted as a crime.


"This case matters to any parent who has a teenage child, or will have a teenage child," B.H.'s lawyer, assistant public advocate John Wampler, said in an interview. "The simple fact is that unfortunately, many young teens under 16 are having sex with each other and engaging in sexting.


"If the Commonwealth's position is held to be correct, then approximately one third of all teenagers, according to recent statistics, could be charged with a felony sex offense," Wampler said. "That should strike fear in the hearts of every parent who has bought their child a smartphone."


The Kentucky attorney general's office, which is defending the prosecution, says that punishing only the boy was justified because he initiated the acts and because he had a prior offense for indecent exposure.


But the nation's oldest public interest law firm for children, the Juvenile Law Center in Philadelphia, and the Children's Law Center of Covington say in a friend-of-the court brief that criminalizing "sexual explorations" among consenting teens is bad law and policy and stigmatizes youths.


"Dealing with sexual feelings is an important part of adolescence," they say in their brief, which notes that most states impose no punishment, or reduce punishment, when teen partners are of similar ages.


Wampler says B.H.'s prior offense is irrelevant to the constitutional issues in the current case.


"There is no dispute that B.H. and C.W. had sex, and it is clear that the sex was consensual," Wampler writes in his brief. "Yet B.H. is painted as villain, C.W. as victim."


Wampler also notes that while both texted nude pictures to each other, only B.H. was charged with a crime — violating the constitutional right to equal protection under the law.


Read the rest of the article here:


Article provided by written by Andrew Wolfson, @adwolfson 12:11 a.m. EST February 9, 2015

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