The oral arguments video put this case into perspective. To read the case is one thing, yet, to see and hear the persons involved and the Justices asking for clarification brings the heart of the matter into focus. The respect the lawyers give to the court while presenting their side of this case is also noted. The lawyers on both sides also seem nervous to be presenting this to the Texas Supreme Court. The issue at hand is brought into focus by seeing the persistence the Justices give in making sure they understand all the aspects of this case.
The passion that each side and the Justices are speaking on is truly amazing. There is oblivious compassion shown by Justice Harriet O’Neill when she is speaking on prosecutorial discretion and how it failed B.W. in this case. She states that the adjudication will have repercussions on B.W. for the rest of her life. Justice Eva Guzman questions the fact that there was no investigation and if the other police departments have other means for dealing with these kinds of cases instead of adjudication. Attorney Michael A. Choyke states that the “plain language of a statute is not to be considered as legislative intent if it leads to absurd results.” This statement summarizes the whole of the case in the fact that the two laws in question allowed for a minor child victim to become adjudicated.
The statutory argument is volleyed by all participants for questioning and clarification. Chief Justice Wallace is showing concern for the creation of more victims if a ruling in favor of B.W would demonstrate to the populace at large that children are not capable of being charged and adjudicated for prostitution, he asks “what is the incentive to make a child abstain from this behavior? His question tells much about his views on punishment and crime deterrence. It would appear to some that Chief Justice Wallace is a supporter of the prevention of crime by general deterrence theory. This method of deterring crime may work for consenting adults, but not for a child under duress as in this case.
The frustration in trying to prove the facts to support the argument is also noted on both sides. The defense is establishing that the adjudication is without any basis in the law by using a clever analogy to a protection train that B.W. should be on yet; she is on the prosecution train. Attorney Anne E. Johnson states “…requires that she immediately be taken off the train, Justice O'Neill, at the minute they discovery that she's a child, and they put her on a protection train”.
Attorney Daniel C. McCroy is defining the precedence setting case “… the statute upon which the defendant is relying, the Petitioner, the Aggravated Sexual Assault Statute, 22.021, if you look at the literal text of that statute, nowhere in that statute does is say that a child under the age of 14 cannot consent to sex. What it does say is that the consent of a child under the age of 14 is not relevant, does not serve as a defense for a sexual assault offender”. The point he is making is that the case rule of 14 years to consent do not apply in this case, it applies to a youth being able to consent to sexual relations with an adult in the adults favor. The consent age is to address the issue of rape against the child, not the child’s age as being able to be a perpetrator of a sex crime. His point may have been better defined as being stated by switching genders. I would have made the point by declaring that if a 14 year old boy forced himself on a woman he could not be charged with rape because he is too young to consent to sex. The following referenced case would have been given (or a similar one) and realization they must move to acquit the 13 year old boy – because according to B.W.s case argument, no crime occurred.
“A 13-year-old Bonita Springs boy stands accused of raping two girls and a boy, all younger than 12.The boy was charged with three counts of sexual battery by a child under 18 on a child younger than 12 and one count of fondling. According to a Lee County Sheriff’s Office report: Deputies were notified Jan. 23 that three youngsters were the victims of a sex crime. A girl told investigators the suspect had touched her private areas more than one time and always while she was alone with him. She also said he had raped her. The incidents occurred while they lived in Texas and she was in the second or third grade. Another girl said he also touched her and raped her several times, including about a month earlier. She said her family had moved from Texas and the incidents occurred about five times since the family has lived in Bonita Springs. She said the incidents occurred in a trailer behind her house and the suspect told her not to tell. The second girl also said he had done the same thing to a boy. The boy said the suspect told him he had sex with the two girls while they lived in Texas. One time when he visited the boy’s house in Texas, he asked him to do a sex act. The boy refused, but when the suspect moved to Bonita Springs, he asked the boy if he remembered about their prior conversation.” http://www.naplesnews.com/news/2011/feb/08/13-year-old-bonita-springs-boy-accused-raping-3-ki/
Furthermore, this age requirement is unconstitutional because it discriminates by gender and violates equal protection under the law that is afforded by the 14th Amendment (Ginsberg, a14). The age of consent is used in consent cases of female children not male. The quoted case does not, of course, need an acquittal- although it does make a point about the minds of 13 year olds and the disparity created by gender and age as status of the offender. If the courts do stand by the 14 year old to consent to a sexual act then the 13 year old boy cannot be guilty of rape.
The interest given to this case by the Justices is also exposed by type of questions and the statements they make. It is oblivious Justice O’Neil, and Justice Guzman have the 13 year old in there heart as a victim. Chief Justice Wallace and Justice Green are leery to rush to call this 13 year old child a victim. Justice Green states that she may try to get out of charges by saying “I committed no crime”.
The insightful statement rings true in this case, B.W. is a victim and an offender. Because of her age she is mostly a victim. It is revealed that B.W. is in fact a guest under the juvenile justice system and is committed at the time of the trial. She is being punished as an offender. The victim needs help to recover her life.
The insightful angle provided by the viewing of the oral arguments rather than reading them is the amount of courtroom crosstalk that is occurring. The justices often cut each other off and then excuse themselves. They assault the case arguing council with questions from every side of the argument and demand the rapid response from the council. The counsel has been in court with one judge and that is very demanding in any court case. I cannot imagine trying to please nine of them and argue the case effectively with all nine asking questions at the same time. This is a judicial gauntlet and it is no wonder why the attorneys often look like deer caught in the headlights.
Decision
Dana Cowan is in concurrence with the opinion delivered by Justice O’Neill, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Guzman Joined. The intent of the legislature was not to create a sex offender at the age of thirteen by the blanket adoption of the Texas penal codes into the Juvenile Justice System. The adjudication of a thirteen year old child for prostitution causes the victimization of the child twice. One victimization by the child having to do the act, the other victimization for the lack of protection given to her by the prosecution of her – to the end of her adjudication.
The Feminist Theory of Delinquency argues “that girl’s victimization and the relationship between that experience and girls crime have often been ignored” (Bartollas, 81). This theory indicates that there is a direct causative result in crime due to the abuse of a female child. The female child that is delinquent is often acting in result of the crime perpetuated upon her. The causative factor of the result is more often than not ignored and the female child seldom ever gets help with the initial trauma. Females in the Juvenile Justice System are composed of a substantial number of victims.
The victimization is both physical and sexual (Bartollas, 81). The adjudication of B.W. is creating a stigma that will follow her for the rest of her life and will prove fact to the Labeling Theory. B.W. will be known in future by parents, teachers and law enforcement as a prostitute. This negative cultural tagging will affect every aspect of her life including simple decisions, motherhood and employment abilities. This adjudication is inherently oppressive and destructive to the future hopes of a life ability to participate in the defended right to the pursuit of happiness granted the American citizen.
The assumption by the prosecution that the whole is greater than the sum of its parts is inherently and grossly faulty. B.W.’s actions as a whole demonstrate the delinquency of a youth. The acts that make up the whole create the necessity to identify that B.W. is a victim and has been victimized by adults due to the nature of her delinquency. The denial of the due process investigation not only violates B.W. it condones the adults actions by discretionary investigating. There is no excuse for this discretion. Perhaps the investigation may indeed create a light to be shined on the involvement of persons within the system that seeks to punish her.
The adults, all of them, who used her services in any way as she earned her money should be identified and convicted of sexual assault on a minor child and hence be known as a registered sex offender. The rape of any other child of the age of 13 years would require the same action. Is it of any consequence that B.W. has received the label? She is in fact still a child and any person who assaulted her should be sought out and convicted – this enforcement of justice would require the law enforcement to actually stand up and do their jobs. The failure in this case is in the confusion of law enforcements job description, the confusion of what is right caused by the labeling of a child – who was at one point an innocent child. The frustration towards a child who is not conforming to society begs the question “Why?” I must not be resolved with the response “Because we have not punished her enough!”
Police are more likely to arrest a female if she violates traditional role expectations for females, such as failing to obey parents, being sexually promiscuous, or running away from home. (Bartollas, 96) The blinders of society to the female delinquent must be examined to discern where the justice lie in the crime B.W. is convicted of. In the growing use of children as sexual objects in the sex trade it must become clearly defined that no matter the assumptions of law enforcement about the child the Penal code violation lies with the adult sexual abuser.
The causative issues at hand is the trends and black-market demand created by sex offenders as defined by Gaines in Policing in America “Prostitution is a compelling social problem because the number of underage people engaged in prostitution. Many female prostitutes are underage, and there is a significant clientele that prefers underage prostitutes. Prostitutes often have long histories of sexual and physical abuse by family members often beginning at the age of 10 or 12” (Gaines, 253).
The life experiences that have produced the result of a child involved in the sex trade cannot be assumed to be of choice by the child and must be seen as worse than imagined- Therefore a thorough investigation into the child’s life must proceed. The events in a child’s life are unknown and cannot be assumed to be irrelevant. The investigation should start where the child did, at home and within the family and radiate out from said point. The violations of the child on the level of physical and sexual abuse must be prosecuted. Each offence is a separate count and a separate act of abuse against the child and is a violation of the Texas Penal Code.
Any person who had sexual relations with B.W. over the age of 14 years should be required to stand trial and must be known to society as a registered sex offender to protect the society form such offenders. If there is a movement to stop the human trafficking that has taken hold in today’s society the absolute zero tolerance stance must be a part of said movement. Anything less than this strong stance is in effect trying to catch the wind with an open hand. It will be in vain and create an ocean of new victims. The changing society with the tolerance of abusing the child must be halted. The children of our society are not a commodity at the disposal of perpetrators in the sex trade.
In State v. K.L.R an eight year old child was convicted of residential burglary by the Superior Court, Clallam County. The child did in fact do the crime and in the court records the mother admitted beating him black and blue. The court ruled that children between the ages of eight to twelve are incapable of committing crime unless they have the capacity to know it was wrong. B.W. may have known her actions were wrong (Samaha, 193). B.W.’s duress must be taken into account for an excuse to this crime. The defense of duress is justifiable in this case due to the nature of the crime and is excusable. The actions of the sex offense alone are supporting the excuse defense. The accepting of money for the act is further supporting that the crime is a learned or forced behavior.
The respondent claims that the May 1996 case does not indemnify the accused of the crime due to the nature of May. The case is a rape case and the offenders are reversed in the case indicating the consent issue to be mute because it does not explicitly state that children under the age of 14 cannot consent to sexual acts. Respondent Dan McCrory, the Assistant District Attorney of Harris County, Texas calls the basis of status cause for acquittal “Legal Fiction”. The assumption of age creating innocence may be in fact legal fiction. The common sense of the issue would suggest the adoption of the legal fiction into law and become policy in the best interest of the children caught up in the sex trade. Respondent Dan McCrory does admit that the case is not a case where he can feel good about the conviction of a child. He states there are no winners in this case.
Conclusions:
The conclusion of this case may allow for B.W. to have a better life in the future, the reversal of her adjudication may lead to the provision of mental health and a prevention of adversarial, lifelong labeling of B.W. that allows for the chance of a normal life. The petitioner’s legal team can have a sense of accomplishment in the ruling. Respondent Dan McCrory is still employed as an Assistant District Attorney of Harris County, Texas and may see these types of crimes in a different light due to the ruling.
The society at large is under attack by the desecration of morals as the sex trade takes hold and the unidentified sex offenders continue to create the market demand for young children to be exploited. The laws do not go far enough into the causation of such crimes to identify at risk youth, or to seek out punitive results on the adult perpetrators of heinous crimes against children. Since this ruling the issue of human trafficking has become a greater force to be dealt with in current society.
The revision of laws to allow for enhanced punitive consequences to the underground human trafficking world and the players in it on any level is a necessity to maintain order and prevent the creation of child victims. The act of sexually assaulting any child is a trespass on humanity and must not be tolerated. The act of sexual offense of a child does not become excused by any fact pertaining to the child including labels, past history, gender and race. These are status identifiers and cannot be used to circumvent due process rights that are in place to protect the status of being a child.
The Texas Supreme Court’s ruling is an indicator of where the evolving standards of decency place the blame of the crime. The ruling establishes that there is no excuse for the sexual exploitation of a child. This ruling will provide help to other children in this situation and who are under duress. The ruling defines what we, as a society, believe to be unacceptable. This ruling rightfully defines to law enforcement that the child has a right to be protected and the adults involved in the crime are the true offenders. The future cases of child exploitation must be seen through the Texas Supreme Court Justice’s eyes and the realization of the whole issue at hand begs to be resolved through criminal charges towards the true perpetrators of the crime.
Works Cited
"13-year-old Bonita Springs Boy Accused of Raping 3 Kids under 12 » Naples Daily News." Naples Daily News: Local Naples, Florida News Delivered Throughout the Day. Web. 02 Mar. 2011.
Bartollas, Clemens, and Stuart J. Miller. Juvenile Justice in America. Upper Saddle River, NJ: Prentice Hall, 2010. Print.
Gaines, Larry K., Victor E. Kappeler, and Karen S. Miller-Potter. Policing in America. Cincinnati, OH: Anderson Pub., 2003. Print.
Ginsberg, Benjamin, Theodore J. Lowi, and Margaret Weir. We the People: an Introduction to American Politic
New York: Norton, 2003. Print
Samaha, Joel. "Chapter 6 Excuse of Age." Criminal Law. Belmont, CA: Wadsworth, 2011. Print.
