Utah Supreme Court Issues Interesting Decision About Underage Sex

Corey Rayburn Yung, Courts, Utah, July 17, 2007

Eugene Volokh summarized the case as follows:

"Court [r]ejects as '[a]bsurd' the sex crime (sexual contact with a child under 14) prosecution -- even in juvenile court -- of a 12- and a 13-year-old who had consensual sex with each other."

Here is an excerpt from the opinion:

We acknowledge that the legislature has demonstrated its intent to punish both participants in victimless, extramarital sexual activity under [State]'s adultery and fornication statutes. However, these statutes differ from sexual assault crimes, such as child sex abuse, in both the theory and degree of punishment. Rather than punishing an actor who has perpetrated a crime against a victim, these laws demonstrate the legislature's disapproval of the acts of both participants for violating a moral standard.

Because these crimes do not involve a victim, they involve a lesser degree of punishment. Both adultery and fornication are punishable as class B misdemeanors. Thus, while the legislature clearly could have intended some degree of simultaneous culpability for both Z.C. and the twelve-year-old boy under the fornication statute in order to discourage their admittedly reckless and age-inappropriate behavior, it is absurd to conclude that the legislature intended to simultaneously punish both children for child sex abuse, a crime that clearly envisions a perpetrator and a victim.

A review of the floor debates regarding the 1983 enactment of the [statute] reveals no evidence that the legislature contemplated application of the statute to situations where the same child was both victim and perpetrator.

Although we generally do not consult legislative history where the meaning of the statute is clear, after finding that the plain meaning has been applied in an absurd manner, we seek to confirm that the absurd application was indeed unintended by the legislature....

We conclude that the legislature could not have intended the child sex abuse statute to be applied to punish Z.C. for the conduct at issue. And the fact that this is a juvenile court disposition, in which the judge enjoys considerable latitude in crafting punishments and assigning state services designed to help the child, does not change our conclusion.

No amount of judicial lenity to compensate for the absurd application of the law changes the fact that the application of the law was absurd to begin with. Moreover, labeling Z.C. with the moniker of "child abuser," even within the juvenile court system, can have serious consequences that were not intended by the legislature.

A delinquency adjudication for sexual abuse of a child can lead to sentencing enhancements for any offenses Z.C. might commit while she is a juvenile or even as an adult if her juvenile record is not expunged. Such an adjudication also has the potential to affect any civil proceedings related to the custody of her child or any future attempts to seek child support from the father.

We therefore vacate Z.C.'s adjudication. We stress, however, that our holding is narrowly confined to the application of [State] Code section 76-5-404.1 in situations where no true victim or perpetrator can be identified.

Even among children under the age of fourteen, there are unfortunately situations where an older or more physically mature child abuses a younger or smaller child. In cases where there is an identifiable distinction between the perpetrator and the victim, it is manifestly logical to conclude that the legislature intended to include such acts within the scope of [State] Code section 76-5-404.1.

In Z.C.'s case, however, where both children were under the age of fourteen and were of similar age, where both children met the intent requirement of the statute, and where there was no evidence of any coercion or force, we conclude that application of the child sex abuse statute produces an absurd result....

Even though the plain language of section 76-5-404.1 allows Z.C. to be adjudicated delinquent for sexual abuse of a child, we conclude that the filing of delinquency petitions against both participants produces an absurd result not intended by the legislature because, like all sexual assault crimes, the statute presupposes a perpetrator and a victim.