Juliet is “not yet fourteen”
In Shakespeare’s Romeo and Juliet, Lady Capulet says her daughter is “not yet fourteen.” Juliet was two weeks from her fourteenth birthday. “Ready for marriage,” her mother said. After all, Lady Capulet says, she was already a mother at that age. Though we never are told her lover Romeo’s age, it’s apparent that Romeo is older, but still of tender chin (without beard). Today, that would be “statutory rape,” a crime. But should we make young lovers into criminals? And should Romeo have to register as a predatory offender in Minnesota? Or should Minnesota pass a Romeo and Juliet law to spare them their awful fate?
Each from families bearing grudges towards each other, the star-crossed lovers’ end is tragic. But were they criminals? Not then, as Juliet’s mother makes clear.
Romeo and Juliet Law
Would prosecutors charge Romeo and Juliet with age-based sex crimes in Minnesota today? Prosecutions of young people like them are common in juvenile and adult criminal courts in Minnesota. Should we change the laws in Minnesota to decriminalize young love? Should foolish love be a crime?
“Oh, what a tangled web we weave; When first we practise to deceive!”
(from Marmion; A Tale of Flodden Field, by Sir Walter Scott.)
“Statutory rape”
Age-based sex crimes are crimes based upon some aspect of sex, plus a too-young age. But Common law rape required an element of force, coercion or lack of consent. Yet, a more recent invention, “statutory rape” does not require force or lack of consent, involves quite consensual acts.
But it rests upon a legislative fiat that a person younger than 16, for example, is mentally feeble; incompetent to consent to sexual acts.
See, Minnesota Statutes §609.342, subdivision 1 (a):
“Neither mistake as to the complainant’s age nor consent to the act by the complainant [sic] is a defense.”
Minnesota Statutes §609.342, subdivision 1 (a)
The “complainant” usually opposes the prosecution. Minnesota could make a Romeo and Juliet law so that consensual acts by young people are no longer a crime.
Double standard in Minnesota law
This premise “incompetence to consent” appears false. After all, the minimum age for competence for criminal prosecution in a Minnesota delinquency petition is ten years old. See, Matter of Welfare of S.A.C., 529 N.W.2d 517 (Minn. App. 1995).
Why would the same laws deem a ten-year-old competent intend a criminal act; but consider a thirteen-year-old like Juliet incompetent to intend sex? A tangled web, indeed.
“O Romeo, Romeo, wherefore art thou Romeo?”
Do we really want to permanently label our Romeos and Juliets “sex criminals,” for the crime of being young lovers?
Do we want them to have to Register as a Predatory Offender for ten years to life?
Many of Minnesota’s “statutory rape” laws contain exceptions for lovers within a range of 24 to 48 months. But for those outside these exceptions “mistake of age,” they say, is not a defense. Minnesota could pass a Romeo and Juliet law to end the criminalization of young lovers.
“The Party was trying to kill the sex instinct, or, if it could not be killed, then to distort it and dirty it.”
— George Orwell (1984)
Sexting and proximity
These days, we can categorize the growing list of sex crimes based upon proximity: penetration, touch, and non-touch. When sexual penetration is criminal, it is a more serious crime than touch. Touch in turn is more intrusive than non-touch. Examples of non-touch sex crimes include:
21st Century Romeo and Juliet
Before our modern-day Romeo and Juliet became lovers, their flirting included sexting.
Young lovers have been around long before Minnesota criminalized them. But some non-touch sex crimes are an artifact of recent technology, like smart phones. Most kids have them these days, and take pictures with them, sometimes naked and arguably sexual images of themselves.
And then they share them with each other over cell phone towers and Wi-Fi connections to the internet. The images may be on their phones or in the data cloud.
Sexting is a new word. It merges and abbreviates “sex texting.” Sexting is sending images via text messaging applications.
Minnesota laws have not kept pace with the times. Should we make every foolish act into a crime?
Prosecutors are now using our laws criminalizing child pornography, to prosecute young people.
Prosecutors are charging young people for taking naked and arguably sexual images of themselves, then sharing them with each other. But shouldn’t we protect our young people from this kind of criminal prosecution?
Can a picture of yourself be child pornography?
A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession or Dissemination of Child Pornography. Minnesota Statutes §617.247. Such prosecutions violate the young person’s right to freedom of speech and expression under the U.S. Constitution as well as the Minnesota Constitution.
But we can do better. So let’s change the laws to make them less unfair. And let’s pass a Romeo and Juliet law; to stop making criminals out of young people.
Predatory Offender Registration for juveniles
Can a juvenile be a “predatory offender” for sexting or as a young lover?
In Minnesota today, sadly, the answer is “yes.”
And labeling juveniles “predatory offenders,” requires them to register their whereabouts, vehicles, schools, addresses, and on and on. And then it sends them to prison if they slip up any little part of doing so.
Is that what we really want to do after a juvenile had consensual sex with her beloved, or after sexting?
Rehabilitation vs. Predatory Offender Registration: ten years to life
Juvenile courts were a result of social reform movements of the late 19th Century. So rather than criminally prosecute juveniles like adults, we set up a separate juvenile court. And juvenile courts have a greater focus on rehabilitation for those adjudicated responsible for some “criminal” act.
An important aspect of juvenile courts is that they have traditionally been non-public – confidential. This protects the juvenile from severe collateral consequences. And it allows the kid to leave youthful mistakes in the past. But in recent years, that has eroded.
In Minnesota, if a prosecutor charges a juvenile 16 years or older with a felony, the case is now public. (Almost all “sex crimes” are felonies in Minnesota.)
Juveniles are not safe from predatory offender registration
Current Minnesota statutes contain no juvenile exception for “predatory offender registration.” See, Minnesota Statutes § 243.166.
But this conflicts with the main, rehabilitative purpose of juvenile court and its protection of juveniles from life-long public exposure.
Adjudication is the trigger
How can we save a juvenile from having to register as a sex criminal for ten years or more?
We must get a dismissal of the entire case, an acquittal, or a stay of adjudication. Because, an adjudication triggers registration, under current law.
Solution: Reform Minnesota laws
Criminal lawyers and courts can wrestle with these things. We can try to save some young people from the jaws of a bad law. But wouldn’t it be better to change the laws to make them less unfair and less harmful?
So why not enact a Romeo and Juliet law in Minnesota to stop turning young people into criminals?
After all, you don’t need to be Christian to recognize the wisdom in Jesus as Defense Lawyer: The Woman Accused of Adultery.
Solution: your Minnesota criminal defense lawyer
Thomas C. Gallagher is a Minneapolis criminal lawyer who handles:
including those involving claims of criminal sexual conduct based on age, and sexting child porn cases.