Last summer, Andrew, a 14-year-old boy from Pennsylvania, engaged in inappropriate behavior that put him before a juvenile court judge. Andrew (a pseudonym) pressed his bare buttocks against the face of a 12-year-old boy, against the 12-year-old's will. In juvenile court, the judge decided that Andrew's actions qualified as aggravated indecent assault, a sexually violent offense.
If the Virginia General Assembly passes Senate Bill 127 or House Bill 624 as either bill looks today, a Virginia child in Andrew's shoes would probably be required to register as a sex offender and remain on the registry for at least 15 years — possibly for the rest of his life. The child would be required to reregister every 90 days and to be photographed every two years. If he failed to re-register, he would be committing a felony. The only significant difference between the bills is that the Senate bill allows for the juvenile to be listed on a private, law-enforcement-only registry.
Both of these bills are intended to bring Virginia into compliance with the federal Adam Walsh Act (AWA) and its section on sex-offender registration, known as SORNA (Sex Offender Registration and Notification Act).
Virginia should not move in the direction of treating child offenders the same as adult offenders. Instead, the state should stand by its commitment to offer young offenders a chance at rehabilitation and reintegration into society. The Virginia Rules website hosted by the Office of Attorney General Ken Cuccinelli describes this commitment well: "There is a juvenile justice system that treats juveniles differently than adults because our society believes juveniles are different from adults, both in terms of level of responsibility and potential for rehabilitation. Although there is concern with public safety and holding juvenile offenders accountable for their actions, there is greater emphasis on rehabilitation than on punishment in the juvenile justice system. 'Rehabilitation' means to restore someone to a useful life through therapy and education."
Current law in Virginia related to juvenile sex offenders recognizes that young offenders should be treated differently than adults. Judges already have the discretion to place a young offender over age 13 on a registry, but only after taking into account things such as the age and maturity of the young offender, the degree of use of force, prior criminal history, and other aggravating and mitigating factors. SB127 and HB624 take away that discretion.
The U.S. Supreme Court recently discussed the difference between adults and young offenders in the case of Graham v. Florida. The court found that the sentence of life without parole for young offenders who have committed non-homicide-related offenses violates the cruel and unusual punishment clause of the Eighth Amendment. In its decision, the court noted the "fundamental differences between juvenile and adult minds" and that the actions of a juvenile are less likely to be caused by an "irretrievably depraved character." While young offenders, the court noted, are not necessarily absolved of responsibility for their actions, their acts were simply not as "morally reprehensible as that of an adult."
Internationally, the distinction between punishing adults and children is also well established. The Convention on the Rights of the Child, an international treaty ratified by every country in the world save the United States and Somalia, states that every child accused, brought before a judge, or convicted of an offense should be "treated in a manner consistent with the promotion of the child's sense of dignity and worth," taking into account "the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society."
Other U.S. states have rejected the idea of prolonged or lifetime registration for young offenders. Both Texas and New York have chosen not to comply with the registration provisions of the Adam Walsh Act. In its letter to the Justice Department explaining why, Risa Sugarman of New York's Office of Sex Offender Management wrote: "New York has a long-standing public policy of treating juvenile offenders differently from adult offenders so that juveniles have the best opportunity of rehabilitation and reintegration. The federal requirement that juveniles be placed on the Sex Offender Registry under AWA is in direct conflict with that public policy."
Also, certain states have achieved compliance with SORNA without requiring prolonged or lifetime registration. Maryland, for example, has created a system of registration for young offenders that sets time limits, allows them to petition for removal from the registry, and automatically removes them from any registries at the age of 21. This system, according to the Justice Department, complies with the AWA.
Virginia legislators shouldn't turn away from the state's sensible policies. They should closely study the issue of AWA compliance and the effect it would have on the young offender and on society as well. Legislators should not pass any law that would hold a 14-year-old to the same level of culpability and stigma as an adult.
Antonio M. Ginatta is the advocacy director for the U.S. Program of Human Rights Watch.