II. Children Are Different
[C]hildren are constitutionally different from adults.… [J]uveniles have diminished culpability and greater prospects for reform … [and] are less deserving of the most severe punishments.… [C]hildren have a lack of maturity and an underdeveloped sense of responsibility … [c]hildren are more vulnerable … to negative influences and outside pressures … [a]nd … a child’s character is not as well formed as an adult’s.
—Miller v. Alabama, United States Supreme Court, 2012 (No. 10‐9646, slip op. at 8 (2012)).
Federal and state laws on sex offender registration and notification fail to take into account relevant—indeed, fundamental—differences between children and adults. These include not only differences in cognitive capacity, which affect their culpability, but also differences in their amenability to rehabilitation, in the nature of their sexual behaviors and offenses and in the likelihood that they will reoffend. Indeed recent laws, like the Adam Walsh Act, reserve the harshest punishments for those who target children without seeming to appreciate that child offenders, whose crimes almost always involve other kids, are particularly likely to be subjected to these harsher penalties. As noted by Berkeley law professor Frank Zimring, “nobody is making policy for 12-year-olds in American legislatures.… What they’re doing is they’re making crime policy and then almost by accident extending those policies to 12-year-olds—with poisonous consequences.”[58]
Cognitive and Developmental Differences
It is axiomatic that children are in the process of growing up, both physically and mentally. Their forming identities make young offenders excellent candidates for rehabilitation—they are far more able than adults to learn new skills, find new values, and re-embark on a better, law-abiding life. Justice is best served when these rehabilitative principles, which are at the core of human rights standards, are at the heart of responses to child sex offending.
Psychological research confirms what every parent knows: children, including teenagers, act more irrationally and immaturely than adults. Adolescent thinking is present-oriented and tends to ignore, discount, or not fully understand future outcomes and implications.[59] Children also have a greater tendency than adults to make decisions based on emotions, such as anger or fear, rather than logic and reason.[60] And stressful situations only heighten the risk that emotion, rather than rational thought, will guide the choices children make.[61] Research has further clarified that the issue is not just the cognitive difference between children and adults, but a difference in “maturity of judgment” stemming from a complex combination of the ability to make good decisions and social and emotional capability.[62]
Neuroscientists are now providing a physiological explanation for the features of childhood that developmental psychologists—as well as parents and teachers—have identified for years.[63] MRI (magnetic resonance imaging) images of the anatomy and function of the brain at different ages and while an individual performs a range of tasks reveal the immaturity of the portions of children’s brains associated with reasoning and emotional equilibrium.[64] It is in large part these developmental and cognitive differences that have caused the US Supreme Court to conclude that juveniles are “categorically less culpable” than adults when they commit offenses.[65]
Moreover, the fact that young people continue to develop into early adulthood suggests that they may be particularly amenable to change.[66] “The reality that juveniles still struggle to define their identity,” noted the US Supreme Court in its 2005 Roper v. Simmons decision, “means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”[67] Both criminologists and development experts agree that “[f]or most teens, these [risky or illegal] behaviors are fleeting. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood.”[68]
Child Sexual Misconduct: A Distinct and Varied Set of Behaviors
The image of the adult sexual predator is a poor fit for the vast majority of children who commit sexual offenses. Children are not merely younger versions of adult sexual offenders.[69]
Current science contradicts the theory that children who have committed a sexual offense specialize in sexual crime, nor is there any evidence of the kind of fixed, abnormal sexual preferences that are part of the image of a pedophile.[70] Although those who commit sex offenses against children are often described as “pedophiles” or “predators” and are assumed to be adults, it is important to understand that a substantial portion of these offenses are committed by other youth who do not fit such labels.
Dr. Marc Chaffin, a leading expert on child sexual offending behavior and professor of pediatrics at the University of Oklahoma Health Sciences Center, explains that “early thinking about juvenile sex offenders was based on what was known about adult child molesters, particularly adult pedophiles, given findings that a significant portion of them began their offending during adolescence.” However, current clinical typologies and models suggest that this assessment is flawed.[71] In fact, empirical evidence, as discussed below, shows that if a history of child sexual offending is used to predict a person’s likelihood of future sex offending, that prediction would be wrong more than nine times out of ten.[72]
Compared to adult sexual offending, sexual misconduct by children is generally less aggressive, often more experimental than deviant, and occurs over shorter periods of time.[73] That said, there is considerable diversity in the sexual behaviors that bring children into clinical settings. Child sex offenses range from “sharing pornography with younger children, fondling a child over the clothes, [and] grabbing peers in a sexual way at school, [to] date rape, gang rape, or performing oral, vaginal, or anal sex on a much younger child.”[74] Enormous diversity also exists within the population of children who commit sex offenses.[75] One expert explains that the population includes:
Traumatized young girls reacting to their own sexual victimization; persistently delinquent teens who commit both sexual and nonsexual crimes; otherwise normal early-adolescent boys who are curious about sex and act experimentally but irresponsibly; generally aggressive and violent youth; immature and impulsive youth acting without thinking; so-called Romeo and Juliet cases; those who are indifferent to others and selfishly take what they want; youth misinterpreting what they believed was consent or mutual interest; children imitating actions they have seen in the media; youth ignorant of the law or the potential consequences of their actions; youth attracted to the thrill of rule violation; youth imitating what is normal in their own family or social ecology; depressed or socially isolated teens who turn to younger juveniles as substitutes for age-mates; seriously mentally ill youth; youth responding primarily to peer pressure; youth preoccupied with sex; youth under the influence of drugs and alcohol; youth swept away by the sexual arousal of the moment; or youth with incipient sexual deviancy problems.[76]
Youth sex offenders come from a variety of social and family backgrounds.[77] In some cases, a history of childhood sexual abuse appears to contribute to child sexual offending behavior, but most child sex abuse survivors do not become sex offenders in adolescence or adulthood.[78] Some child offenders have experienced significant adversity, including maltreatment or exposure to physical violence; others have not.
Many of the sexual behaviors of youth are problematic, and need to be addressed in a clinical setting or by the justice system, but placing children who commit sex offenses on a registry—often for life— is going too far.
Recidivism of Youth Sex Offenders
As noted above, there is no scientific foundation for the belief that children who commit sexual offenses pose a danger of future sexual predation.[79] Once detected, most adolescents who have engaged in sexually abusive behavior do not continue to engage in these behaviors.[80] Studies consistently find that adult sex offenses are committed by individuals not known to have been youth sex offenders.[81]
Recidivism rates for youth sex offenders are consistently low. One study that included a cohort composed mostly of youth convicted of violent sex offenses found a recidivism rate of 10 percent.[82] Several studies have found recidivism rates for all youth sex offenders (violent and nonviolent offenses) at between four and seven percent, and one recent study found the rate to be as low as one percent.[83] A meta-analysis that reviewed 63 data sets reporting on the re-offense behavior of 11,219 youth sex offenders found an estimated mean sexual recidivism rate of 7.08 percent across a 5-year follow-up period.[84] These rates should be compared with a 13 percent recidivism rate for adults who commit sexual offenses[85] and a national recidivism rate of 40 percent for all criminal offenses.[86]
A 2007 study by University of California, Berkeley law professor Franklin Zimring found that youth sex offenders have “a low volume of sexual recidivism during their juvenile careers, and an even lower propensity for sexual offenses during young adulthood.”[87] Another study found that when youth sex offenders are re-arrested, it is “far more likely to be for nonsexual crimes such as property or drug offenses than for sex crimes.”[88] One of Zimring’s studies found that youths with five or more arrests for offenses other than sex offenses pose twice the risk of being arrested in adulthood for a sex offense than do youth sex offenders with fewer than five arrests.[89] Given the low rates of recidivism among youth sex offenders, Zimring points out that if the goal of sex offender registration is to compile a list of names of possible future sex offenders, it would be more effective to register youth offenders with five or more contacts with law enforcement for non-sexual offenses as potential future sex offenders than to register youth sex offenders.
[58] Diane Jennings, “Franklin Zimring Objects to Juvenile Sex Offender Registration,” The Dallas Morning News, July 19, 2009.
[59] See, for example, William Gardner and Janna Herman, “Adolescent’s AIDS Risk Taking: A Rational Choice Perspective,” in William Gardner et al., eds., Adolescents in the AIDS Epidemic (San Francisco: Jossey Bass, 1990) (“Adolescent’s AIDS Risk Taking”), pp. 17, 25-26; Marty Beyer, “Recognizing the Child in the Delinquent,” Kentucky Child Rights Journal, vol. 7 (Summer 1999), pp. 16-17.
[60] See Thomas Grisso, “What We Know About Youth’s Capacities,” in Thomas Grisso and Robert G. Schwartz, eds., Youth on Trial: A Developmental Perspective on Juvenile Justice (Chicago: University of Chicago Press, 2000), pp. 267-69 (reviewing literature on effects of emotion on children’s cognitive capacities).
[61] See, for example, Kim Taylor-Thompson, “States of Mind/States of Development,” Stanford Law and Policy Review, vol. 14 (2003), p. 155, fn. 107-108 (reviewing research on effects of stress on juvenile decision-making) (“States of Mind/States of Development”).
[62] Elizabeth Cauffman and Laurence Steinberg,“(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults,” Behavioral Sciences and the Law, vol. 18 (2000), p. 741; see also Laurence Steinberg, Elizabeth Cauffman, et al., “Age Differences in Sensation-Seeking and Impulsivity as Indexed by Behavior and Self-Report: Evidence for a Dual Systems Model,” Developmental Psychology, vol. 44 (2008), pp. 1764-1778; and M. Gardner and Laurence Steinberg, “Peer Influence on Risk Taking, Risk Preference, and Risky Decision making in Adolescence and Adulthood: An Experimental Study,” Developmental Psychology, vol. 41 (2005), pp.625-635.
[63] See, for example, Jeffrey Arnett, “Reckless Behavior in Adolescence: A Developmental Perspective,” Developmental Review, vol. 12 (1992), p. 339; Charles E. Irwin, Jr., “Adolescence and Risk Taking: How are They Related?” in Nancy J. Bell and Robert J. Bell, eds., Adolescent Risk Taking (Thousand Oaks: SAGE Publications, January 1993), p. 7.
[64] See, for example, Jay N. Giedd et al., “Brain Development During Childhood and Adolescence: A Longitudinal MRI Study,” Nature Neuroscience, vol. 2 (1999), p. 861 (discussing an MRI study of the brains of 145 children, images taken up to five times per child over ten years); Kenneth K. Kwong, et al., “Dynamic Magnetic Resonance Imaging of Human Brain Activity During Primary Sensory Stimulation,” Proceedings of the National Academy of Science, vol. 89 (1992), p. 5675.
[65]Roper v. Simmons, 543 U.S. 551, 570 (2005).
[66] The malleability of a youth’s brain development suggests that young people through their twenties may be especially capable of change as they grow older and attain adult levels of development. Laurence Steinberg et al., “The Study of Developmental Psychopathology in Adolescence: Integrating Affective Neuroscience with the Study of Context,” in Dante Cicchetti and Donald Cohen, eds., Developmental Psychopathology (Oxford: John Wiley & Sons, 2006), p. 727.
[67]Roper v. Simmons, 543 U.S. 551, 570 (2005).
[68] Ibid.
[69]J.V. Becker, “What we know about the characteristics and treatment of adolescents who have committed sexual offenses,” Child Maltreatment, vol. 3 (1998), pp. 317-329.
[70] Franklin E. Zimring, An American travesty: Legal responses to adolescent sexual offending (Chicago: University of Chicago Press 2004).
[71] David Finkelhor, Richard Ormrod, and Mark Chaffin, Office of Juvenile Justice and Delinquency Prevention, “Juveniles Who Commit Sex Offenses Against Minors,” December 2009 (citing Letourneau and Miner, 2005), https://www.ncjrs.gov/pdffiles1/ojjdp/227763.pdf (accessed March 21, 2013), p. 3.
[72] Zimring, An American travesty: Legal responses to adolescent sexual offending (citing M.F. Caldwell, 2002);“What we do not know about juvenile sexual reoffense risk,” Child Maltreatment, vol. 7, pp. 291-203 (concluding, based on criminal justice cohorts analyzed by Franklin E. Zimring, that “more than nine out of ten times the arrest of a juvenile sex offender is a one-time event, even if the same offender may be apprehended in the future for the same mix of non-sexual offenses that is typical of other juvenile delinquents.”).
[73] David Finkelhor, Richard Ormrod, and Mark Chaffin, “Juveniles Who Commit Sex Offenses Against Minors,” p. 3.
[75] M. Chaffin, “Our minds are made up—don’t confuse us with the facts: Commentary on policies concerning children with sexual behavior problems and juvenile sex offenders,” Child Maltreatment, vol. 13 (2008), pp. 110-121—citing studies including but not limited to: M.F. Caldwell, “Sexual offense adjudication and sexual recidivism among juvenile offenders,” Sexual Abuse: A Journal ofResearch and Treatment, vol. 19 (2007), pp.107-113; M.F. Caldwell, “What we do not know about juvenile sexual reoffense risk,” Child Maltreatment, vol. 7 (2002), pp. 291-302; M. Carpentier, J.F. Silovsky, and M. Chaffin, “Randomized trial of treatment for children with sexual behavior problems: Ten-year follow-up,” Journal of Consulting and Clinical Psychology, vol. 74 (2006), pp. 482-488; M. Chaffin et al., Report of the ATSA Task Force onChildren with Sexual Behavior Problems (Beaverton, OR: Association for the Treatment of Sexual Abusers, 2006); M. Chaffin and B. Bonner, “Don’t shoot, we’re your children: Have we gone too far in our treatment of adolescent sexual abusers and children with sexual behavior problems,” Child Maltreatment, vol. 3 (1998), pp. 314-316; J.A. Hunter et al., “Juvenile sex offenders: Toward the development of a typology,” Sexual Abuse: Journal of Research & Treatment, vol. 15 (2003), pp. 27-48; A.E. Kazdin and J.R. Weisz, “Identifying and developing empirically supported child and adolescent treatments,” Journalof Consulting and Clinical Psychology, vol. 66 (1998), pp. 19-36; E. Letourneau and M. Miner, “Juvenile sex offenders: The case against legal and clinical status quo,” Sexual Abuse: AJournal of Research and Treatment, vol. 17 (2005), pp. 293-312; R.E. Longo and D.S. Prescott, Current perspectives: Workingwith sexually aggressive youth and children with sexual behavior problems (Holyoke, MA: NEARI Press, 2006); J.K. Marques et al., “Effects of a relapse prevention program on sexual recidivism: Final results from California’s Sex Offender Treatment and Evaluation Project (SOTEP),” SexAbuse: Journal of Research and Treatment, vol. 17 (2005), pp. 79-107; W. Marshall et al., “Early onset and deviant sexuality in child molesters,” Journal of InterpersonalViolence, vol. 6 (1991), pp. 323-335; R. Martinez, J. Flores, and B. Rosenfeld, “Validity of the Juvenile Sex Offender Assessment Protocol–II (JSOAP-II) in a sample of urban minority youth,” Criminal Justice and Behavior, vol. 34 (2007), pp. 1284-1295 M.J. O’Brien and W. Bera, “Adolescent sexual offenders: A descriptive typology,” Newsletter of the National Family LifeEducation Network, vol. 1 (1986), pp. 1-5; D. David Finkelhor, Richard Ormrod, and Mark Chaffin, Office of Juvenile Justice and Delinquency Prevention, “Juveniles Who Commit Sex Offenses Against Minors”; G.A. Parks and D.E. Bard, “Risk factors for adolescent sex offender recidivism: Evaluation of predictive factors and comparison of three groups based upon victim type risk factors for adolescent sex,” Sexual Abuse: A Journal of Research and Treatment, vol. 18 (2006), pp. 319-342; A.R. Piquero, T.E. Moffitt, and B.E. Wright, “Self-control and criminal career dimensions,” Journal of Contemporary CriminalJustice, vol. 23 (2007), pp. 72-89; R. Prentky et al., “Risk management of sexually abusive youth: A follow-up study,” Justice Resource Institute, 2002.
[76] M. Chaffin, “Our minds are made up—don’t confuse us with the facts: Commentary on policies concerning children with sexual behavior problems and juvenile sex offenders,” Child Maltreatment, vol. 13 (2008), pp.110-121.
[77] David Finkelhor, Richard Ormrod, and Mark Chaffin, “Juveniles Who Commit Sex Offenses Against Minors.”
[78] Finkelhor, Ormrod, and Chaffin, “Juveniles Who Commit Sex Offenses Against Minors,” citing I. Lambie et al., “Resiliency in the victim-offender cycle in male sexual abuse,” Sexual Abuse: A Journal of Research and Treatment, vol. 14 (2002), pp. 31–48; C.S. Widom and M.A. Ames, “Criminal consequences of childhood sexual victimization,” Child Abuse and Neglect, vol. 18 (1994), pp. 303–318.
[79]Franklin E. Zimring, An American travesty: Legal Responses to Adolescent Sexual Offending (Chicago: University of Chicago Press, 2004).
[80] Michael Caldwell, “Study Characteristics and Recidivism Base Rates in Juvenile Sex Offender Recidivism,” International Journal of Offender Therapy and Comparative Criminology, vol. 54 (2010), pp. 197-212.
[81] Ibid., p. 207; Franklin E. Zimring et al., “The Predictive Power of Juvenile Sex Offending: Evidence from the Second Philadelphia Birth Cohort Study,” December 2006, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=995918 (accessed November 30, 2011); see also Margaret A. Alexander, “Sexual Offender Treatment Efficacy Revisited,” Sexual Abuse: A Journal of Research and Treatment, vol. 11 (1999), pp. 101-116.
[82] Franklin E. Zimring et al., “The Predictive Power of Juvenile Sex Offending: Evidence from the Second Philadelphia Birth Cohort Study,” June 21, 2007, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=995918 (accessed November 30, 2011) (some believe that studies report low sex re-offense rates because they sample offenders who commit minor, non-violent offenses; in this study, however, 77 percent of the youth had been convicted of violent sexual offenses.)
[83] Michael Caldwell, “Sexual Offense Adjudication and Recidivism Among Juvenile Offenders,” Sexual Abuse: A Journal of Research and Treatment, vol. 19 (2007), pp. 107-113; Donna Vandiver, “A Prospective Analysis of Juvenile Male Sex Offenders: Characteristics and Recidivism Rates as Adults,” Journal of Interpersonal Violence, vol. 21 (2006), pp. 673-688; E.J. Letourneau et al., “Do sex offender registration and notification requirements deter juvenile sex crimes?” Criminal Justice and Behavior, vol. 37 (2010), pp. 553-569. See also Finkelhor, Ormrod, and Chaffin, “Juveniles Who Commit Sex Offenses Against Minors,” https://www.ncjrs.gov/pdffiles1/ojjdp/227763, p.3 (noting that “multiple short and long-term clinical followup studies of juvenile sex offenders consistently demonstrate that a large majority (about 85-95 percent) of sex offending youth have no arrests or reports for future sex crimes.”).
[84] Caldwell, “Study characteristics and recidivism base rates in juvenile sex offender recidivism,” International Journal of Offender Therapy and Comparative Criminology, pp. 197-212.
[85] R. Karl Hanson and Monique T. Bussiere, “Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies,” Journal of Consulting and Clinical Psychology, vol. 66(1998), pp.348-362.
[86] Pew Center on the States, “State of Recidivism: The Revolving Door of America’s Prisons,” April 2011, http://www.pewcenteronthestates.org/news_room_detail.aspx?id=85899358615 (accessed November 30, 2011). The 40 percent recidivism rate applies to prison inmates released in 1999 who returned to prison within three years due to a new criminal conviction or for violating conditions of release.
[87]Franklin E. Zimring et al., “The Predictive Power of Juvenile Sex Offending: Evidence from the Second Philadelphia Birth Cohort Study,” June 21, 2007, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=995918 (accessed March 21, 2013).
[88] David Finkelhor, Richard Ormrod, and Mark Chaffin, “Juveniles Who Commit Sex Offenses Against Minors,” p.3 (citing Alexander, 1999; Caldwell, 2002; Reitzel and Carbonell, 2007).
[89] Franklin Zimring, “The Wages of Ignorance,” University of California, Berkeley School of Law, July 30, 2009, p. 12.
