Some aspects of prosecuting sex crimes in juvenile court are unique. Attention to these areas can improve prosecutors’ management of juvenile sex crime litigation.
Andrew J. Walker
In many ways trying juvenile sex crime cases is very similar to trying sex crime cases against adult defendants. Both types generate strong emotions, and they both involve the same difficulties of presenting child witnesses who must describe having been hurt, violated, humiliated, and traumatized. The trial mechanics and the defenses are also similar to adult sex crime prosecution. These challenges, however, take place within the dynamics of juvenile court. In light of these difficulties and their context, success in juvenile sex crime prosecutions should be measured in terms of protecting sexual assault victims and seeking accountability and rehabilitation for juvenile offenders.
Meeting these goals requires a familiarity with the quasi-civil rules of juvenile court, a clear grasp of the mechanics of proving a sex crime, and effective communication with crime victims and their families. TDCAA has published excellent books to assist prosecutors in each of these three areas, and they are good places to start,1 but some topics are unique to sex crime prosecution in juvenile court. This article will focus on three of them: addressing the age and development of the person on trial during jury selection, determining a case’s appropriate disposition, and discussing a case’s disposition with victims and their families.
A successful voir dire nips potential problems in the bud before opening statements by setting out what is germane to the case. Juvenile sexual offenses evoke confusion, disgust, and any number of generalizations about teenagers and sex crimes in the jury pool. As well, some trials risk being defined by the juvenile offenders’ needs or the conditions in which they live rather than the cases’ facts. Clearly defining the relevant issues is the most important part of jury selection because it gives the prosecutor control of a case’s subject matter and weeds out potential jurors who cannot keep this focus.
Generally, if the prosecutor focuses the jury panel’s attention on deciding whether the offense took place, strong jurors and problematic jurors in juvenile sex crimes are the same as in adult sex crimes. The prosecutor must prevent strong jurors from disqualifying themselves early on by explaining that the case is not a referendum about child abuse and that revulsion to sexual offenses is not an exemption from jury service. Then, along with discussions about the types of evidence the jury could expect, possible weaknesses in the facts of the case, and commitments to follow the law, the prosecutor should raise issues relating specifically to a juvenile trial. It is important to directly address the fact that the case is a juvenile trial because to do otherwise is to ignore a significant difference between typical beliefs that come to many jurors’ (and judges’) minds about sex crimes and the dynamics of your trial.
If the judge has not discussed differences in terminology, some presentation of the use of terms in juvenile court may be a good introduction to a discussion of juvenile issues (for example, that the alleged offender is called the “respondent” instead of the “defendant”). I evoke discussion by asking questions about any perceived differences between adult sex crimes and juvenile sex crimes or juvenile crime in general. I do so with the goal of limiting the relevance of these issues to the types of facts the jury will hear. Possible questions a prosecutor can ask include:
• What does a sex offender look like?
• Should juveniles be prosecuted for sex crimes?
• How should the justice system address sex crimes alleged against juveniles?
• Are there any differences between juvenile sex crimes and adult sex crimes?
• Should juveniles who commit sex crimes be treated differently from adult sex offenders?
These types of questions are important because they can get jurors talking. Jurors’ answers and the discussion these questions provoke will more easily identify problematic jurors as the prosecutor monitors the direction of the conversation. It is then easier to present subjects that sometimes appear different in a case against a juvenile, such as social relationships, empathy between a victim and a perpetrator, or a child victim’s difficulty testifying. (Unless the case invokes the determinate sentencing statute, the prosecutor should focus jurors’ attention to their role as factfinders by explaining that only the judge will determine the sentence if the jury finds that the crimes alleged are true.) As the jurors are better screened and the issues are focused to factual issues relevant to guilt or innocence, the prosecutor should present the type of facts the jury will hear and the issues most important for the particular case.
An appropriate disposition
The greatest difference between juvenile and adult sex crime prosecution is the potential to reform the offender and prevent future criminal sexual behavior. While success in prosecuting adult offenders is usually measured by the length of the prison sentence they receive, success with juvenile offenders is usually best achieved by finding the best setting for strict, long-term, intensive sex offender treatment by a properly licensed professional.2
Pedophilia and other criminally deviant adult sexual conditions are rare among juveniles.3 Given enough time, however, we will all see juvenile cases that involve sadism, pedophilia, or predatory behavior that shocks the imagination. Such cases virtually always necessitate transfer for trial as an adult or a lengthy determinate sentence. Fortunately, the majority of juvenile cases do not fit in these categories. Most junior high- and high school-age offenders have different motivations for their acts, different understandings of the acts’ consequences, and far more success in sex offender treatment programs than adults.4 Unless a juvenile will be an adult in a short amount of time, the case can usually be handled as a non-determinate case within the juvenile system.
In Galveston County, a significant percentage of the juvenile sexual offenses on the docket involve teenage siblings, cousins, and babysitters sexually assaulting pre-pubescent children. These cases involve perpetrators doing extreme harm but are rarely based on the deviant mental operations of adult offenders. With good preparation, a willingness to take the toughest cases to trial, and the broadest possible range of disposition options, more cases are won and more enter into favorable plea agreements.
The disposition options in these and other juvenile sex crimes require determining what treatment options are available. The Texas Youth Commission (TYC) offers appropriate treatment but sometimes not until a spot opens in a program.5 Other options include residential placements and public and private outpatient providers. Only after this review is complete can justice be served on a case-by-case basis. Galveston County uses each option, depending on each juvenile’s risk to public safety and his or her needs. We never send juveniles adjudicated for sex offenses to unlicensed providers because it is illegal to provide treatment without licensure by the Texas Council on Sex Offender Treatment,6 and we would never consider solutions such as six months of visits with a psychologist who does not specialize in sex offender treatment and who does not fully consider the needs of crime victims and public safety.
Treatment should include the respondent and the adult family members when possible. It should be viewed as a huge intervention that includes forensic investigation into the respondent’s behavior, and it should affect all aspects of the participants’ lives. Juveniles and their families must agree to allow treatment records to be available to probation officers and prosecutors, for the juveniles to submit to polygraph tests at the therapist’s request, and to discuss subjects such as incest and sexual abuse.7 A treatment program does not dive straight into taboo subjects but must have clear expectations and address issues relating to accountability, empathy for victims, and the effects of the criminal behavior.8 It should incorporate the goal of eliminating criminal behavior and raising the overall quality of life in a community. A treatment provider must keep public safety in mind at all times and be able to recognize the small percentage of juveniles with sociopathic tendencies significant enough to manipulate a therapeutic setting or otherwise cause the juvenile to not respond appropriately.9
Ten years ago the Galveston County District Attorney’s Office, in conjunction with a local treatment provider, developed a plan to effectively treat appropriate youth with sexual behavior issues. The treatment team is composed of juvenile probation officers, treatment providers, a liaison with the Child Advocacy Center, the polygrapher, the district attorney’s office, and, when needed, a Child Protective Services representative.10 Having everyone in the same room allows the prosecution to act more efficiently and to fully understand the facts of a case before a probation revocation is filed.
There is no one-size-fits-all plan to treat and monitor juvenile sex offenders. The amount of time a juvenile under our team’s review spends in treatment can vary substantially; the average length of treatment is about 18 months. The minimum term of probation we seek for a teenager in this type of program is 24 months. At times this term necessitates a determinate sentencing petition to ensure that the juvenile can continue on probation until successfully completing the program. For a county with a population of about 280,000 people, this option provides services to 20 to 25 juveniles each year and costs approximately $140,000 annually, which comes out to between $5,600 and $7,000 per youth per year.
We cannot, however, seek a community-based placement without verified information about the juvenile offender that would make the placement appropriate, nor can we expect that we will always incarcerate a juvenile after a hard-won trial. There is currently not enough data to show the long-term success or failure of community-based placement or more restrictive placements. For these reasons, the prosecutor must seek information about the offense, the environment in which the offense took place, and whether there have been additional offenses. Questions about a juvenile sexual offender should include:11
• What other type of sexually abusive behavior has the juvenile committed?
• How many victims are there?
• Is the victim still in the offender’s home?
• What access does the juvenile have to other vulnerable people?
• Are there other underlying psychopathology issues?
• What was the level of intrusiveness of the sexual act?
• Did the juvenile use force, threats, intimidation, coercion, or weapons during the offense?
• How frequent was the sexually abusive behavior?
• Are the juvenile’s parents or guardians minimizing or denying the seriousness of the offense?
• How strong is the juvenile’s familial support network?
• How honest is the juvenile about the sexually abusive behavior?
• How empathetic is the juvenile toward the victim?
• What other delinquent behavior has the juvenile committed?
• How does the juvenile present himself on social networking websites?
Risk assessment is not an exact science, and public safety must be kept in the forefront of placement decisions. Usually we will not know all of the answers to all of these questions. However, the more a prosecutor knows or can show is unknown, the stronger the argument for the most appropriate disposition to a case.
Discussions with victims and their families
One of the most difficult aspects of prosecuting juvenile sex crimes is prosecuting crimes that involve extreme violations of a child’s dignity, mental health, and physical well-being in a system that is built around the rehabilitation needs of the perpetrator rather than the needs of the victim. Some people initially want no less than a life sentence for a juvenile sex offender; others want no punishment at all. When the victim and the perpetrator are in the same family, the family is sometimes drawn apart with extreme bitterness, with some rallying around the child-victim and others around the juvenile perpetrator.
The range of results for a juvenile sex crime trial must be presented in the context of a juvenile court and within the parameters of the available dispositions, which often requires lengthy discussions with a victim’s family. Seek help from victim assistance professionals in your jurisdiction. Make sure that everyone on the prosecution team is familiar with the dynamics of a sex crime prosecuted in a juvenile court. Discussions with victims about disposition are best saved for after discussions about the victim’s condition, victim assistance and counseling, and what to expect at trial. Victims and their families must know that the prosecutor is attuned to their needs and is seeking justice.
Most people can recognize the interests at stake and can set aside their anger and frustration when professionals whom they respect and trust are involved. Discussing the available sentencing options with a victim’s family can assist grief-stricken and angry families as the prosecutor takes time to discuss the legal process and juvenile courts with them. Families should know as much of the process as a prosecutor’s office can explain. I always attempt to explain the trial process, with an emphasis on the victim’s testimony, outcry testimony, and sentencing process within the parameters available. In my experience, I have been surprised and extremely moved by the numbers of times victims’ parents have wanted sex offender treatment—rather than prison time—when they learn what options are available for the juveniles who have inhumanely hurt their children.
As with adult trials, preparation wins juvenile cases and, one case at a time, improves the quality of life in a community. Juvenile prosecutors are in a delicate and unique position because they have the chance to provide an offender with rehabilitation that would be inappropriate for an adult offender. Careful attention when selecting a jury, determining an appropriate disposition, and discussing that disposition with victims and their families will ensure that all parties involved in a trial for a juvenile sex offense are treated fairly and that all goals of juvenile prosecution are met. ✤
1 See Terese M. Buess and Michael E. Trent, Investigation and Prosecution of Child Sexual Abuse, 2nd Ed. (2007); Chris Hubner and Sharon N. Pruitt, Juveniles (2005); Diane Beckham, Victim Assistance Manual, 2nd Ed. (2007).
2 See Texas Administrative Code, Title 22, §810.3 (setting out licensure requirements for sex offender treatment providers).
3 For general information about juvenile sex offenders that is not burdened by social science jargon, see Council on Sex Offender Treatment, Treatment of Sex Offenders: Juveniles with Sexual Behavior Problems, informational statement, available at www.dshs.state.tx.us/csot/csot_tjprobs .shtm; see also The Association for the Treatment of Sexual Abusers’ summary about children with sexual behavior problems, available at www .atsa.com/ppChildren.html.
4 Association for the Treatment of Sexual Abusers, Board Resolution, The Effective Legal Management of Juvenile Sexual Offenders, March 11, 2000, available at www.atsa.com/ppjuve-nile.html.
5 With the recent TYC reforms adopted by the 80th Legislature, we send fewer people to TYC and have far less leverage against really rough teenagers who are not major offenders. One effect of the decision to downsize TYC will be more crimes that could have been prevented (by incarcerating juveniles likely to reoffend) and longer prison sentences for juveniles certified to stand trial as adults. A discussion of these TYC reforms is too lengthy to delve into here.
6 Texas Administrative Code, Title 22, §810.3(a) (detailing licensure of sex offender treatment providers); see also §§810.61; 810.62 (setting out standards of practice); §810.63 (establishing general assessment standards); §810.65 (establishing assessment and treatment standards for use during treatment of juveniles); §810.68 (establishing standards of practice for treatment of juvenile); §810.92 (establishing code of ethics).
7 In Texas, juvenile sex offenders may be required by law to submit to polygraph examinations. See Texas Administrative Code, Title 22, §810.65(g); Texas Human Resources Code, Title 3, §61.0813. Polygraph tests are a typical part of the therapy in Galveston County’s outpatient program and provide strong motivation for honest dialogue with treatment providers. Juvenile sex offenders in Galveston Country are required to submit to polygraph tests conducted by expert polygraphers as a condition of probation.
8 The legislature sets out the issues to be addressed in treatment in Texas Administrative Code, Title 22, §810.68.
9 For more information about what constitutes sex offender treatment, see Understanding Treatment for Adults and Juveniles who have Committed Sexual Offenses, a project of U.S. Department of Justice Office of Special Programs Center for Sex Offender Management (November 2006), available at www.csom.org/ pubs/treatment_brief.pdf.
10 For a discussion of collaborative teams to manage sex offender monitoring, see Enhancing the Management of Adult and Juvenile Sex Offenders: A Handbook for Policy Makers and Practitioners, a project of U.S. Department of Justice Office of Special Programs Center for Sex Offender Management (July 2007), available at www.csom.org/pubs/CSOM_handbook.pdf. Collaborative teams may also be used to monitor adult sex offenders if they are released from prison. They may include correctional officials, victim advocates, faith-based institutions, law enforcement officers, court administrators, and others.
11 A useful resource that discusses most of these factors in the context of gauging the appropriate course of action for a juvenile sex offender is included in the Colorado Sex Offender Management Board Standards and Guidelines for the Evaluation, Assessment, Treatment, and Supervision of Juveniles who have Committed Sexual Offenses, available at www.dcj.state .co.us/odvsom. A form produced by the Texas Juvenile Probation Commission that incorporates many of these factors is available at www .tjpc.state.tx.us/publications/forms/2004/RARCSEX0204.pdf.