Kentucky Supreme Court will hear arguments Thursday 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.
Recalling the infamous example of U.S. Rep. Anthony Weiner, Wampler argues that prosecuting B.H. for sexting — while adults would go unpunished for the same conduct — is also unfair. “While the former congressman’s sexting did unquestionable damage to his political career (and presumably, to his marriage as well), he did not find himself in jail over his actions.”
Neither Wampler nor the youth law centers say that underage youths like B.H. and C.W. should have “carte blanche to engage in gratuitous sex without culpability,” as Wampler put it.
Instead, the lawyers say both could have been referred as status offenders for counseling and ordered to take classes on sexual boundaries and appropriate interactions with their peers.
B.H. pleaded guilty to two misdemeanors in May 2011 and District Judge Vanessa Dickson designated him a juvenile sex offender, which under the law required that he be removed and placed in a secure youth center for treatment for about 11 months as a sexual predator.
Appeals to the Woodford Circuit Court and state Court of Appeals were unsuccessful, but the state Supreme Court agreed to hear his case.
Arguing to uphold the prosecution, Gregory Fuchs, the assistant attorney general, says that by pleading guilty, B.H. lost the right to challenge the constitutionality of his conviction.
Fuchs also says it’s important to note that the boy’s problems began more than a year before when he adjudicated on the indecent exposure charge, for knocking on a neighbor’s door dressed only in a towel, removing it, then fondling himself in front of the neighbor when she asked him to go away.
B.H. was still on probation when the other offenses arose, justifying the court’s decision to punish him rather than the girl, Fuchs said.
He also cites the girl’s testimony that B.H. said he “would tell me what to do and how to do it,” and says B.H. was more culpable because he sent the first photo and threatened to tell friends they were having sex if she didn’t send him one back.
“There was only one victim in this case, C.W.,” Fuchs writes, “and it was just as illegal” for B.H. to “possess child pornography” — the sexted photos — “as it would have been if he was 51 years old.”
Wampler said B.H.’s conduct might not earn him “any points for boyfriend of the year.”
But the youth center lawyers — Rebecca Ballard DiLoreto for the Kentucky group and Marsha Levick for the national organization — say that engaging in sexting, “while arguably stupid or reckless,” is “a normal part of modern adolescent behavior.”
Wampler, citing a 2013 pediatric study that found about one-third of all adolescents in the United States are sexually active by age 16, says it would “double the damage” if they were all charged with crimes.
“It is misbehavior, not criminal behavior,” DiLoreto said in an interview.
Wampler also asserts it makes no sense for the state to say a 15-year-old lacks the maturity to consent to sex with an adult, then hold him criminally liable for the same behavior with a juvenile.
That has resulted in absurd results elsewhere. In Ogden, Utah, for example, a 13-year-old girl was charged as both an offender and named as a victim in the same act of consensual sex with her 12-year-old boyfriend. Utah’s high court dismissed the charge, calling it “absurd.”
Several states have adopted what are dubbed Romeo and Juliet laws to prevent teens of roughly the same age from being prosecuted for rape or other crimes for consensual sex with one another.
In Texas, for example, either partner has a defense if the couple is older than 14, in a consensual relationship and within three years of each other. Indiana statute provides an affirmative defense if the defendant can prove that he had an “ongoing or dating relationship” with the victim.
And in neighboring Ohio, the state Supreme Court in 2010 held that it was unconstitutional to criminally charge a child who was himself legally unable to consent when he engaged in sexual conduct with a same-aged peer.
“Each child is both an offender and a victim,” that court said, “and the distinction between those two terms breaks down.”
Terry Brooks, executive director of Kentucky Youth Advocates, which is not involved with the case, said that if what happened between B.H. and C.W was truly consensual, it was a “classic case of adolescents being adolescents and making careless and less-than-well-reasoned decisions.”
He said the courts and society need to “reset” the future path of such teenagers, rather than adopt policies that “forfeit” their future.
“It is complicated — but imperative — to be smart about kids when they make an ill-advised decision,” Brooks said.
By Andrew Wolfson