Criminalizing Juvenile Female Sexuality By Alexis Killough

Criminalizing Juvenile Female Sexuality

By Alexis Killough

It is an all-too-familiar story in modern American society. A teenage girl falls for the attractive young coach at her high school and the relationship soon turns sexual.[1] Inevitably, her parents discover the relationship and object to the seven-year age difference.[2] In this case, however, the girl ends up entering the criminal justice system as a child in need of supervision when her father files a petition with the court.[3] Because she is sixteen, this is not a case of statutory rape, so bringing the girl under the control of the court is the only way to force the relationship to end.[4]

Alabama’s juvenile justice system allows a juvenile court to declare a juvenile to be a child in need of supervision if that juvenile “disobeys the reasonable and lawful demands of his or her parent…and is beyond the control of the parent.”[5] At that point, the juvenile is labeled a status offender under Alabama law and is subject to the control of the court, much like a juvenile who is adjudicated delinquent.[6] While this process comports nicely with the idea of protecting juveniles and allowing the juvenile justice system to assist parents in need, it has been warped to allow the criminalization of sexuality in juvenile girls by “transforming female sexual interest and activity into female delinquency”.[7] The standards used by the status offense system, in Alabama and across the United States, criminalize sexual activity in girls, using the legal system to shame and force them to comply with social norms as determined by the prior generation.

From its inception, the juvenile justice system has functioned as a place where society engages in “largely unchecked and curiously intrusive social control strategies.”[8] Specifically, this has included subjecting juvenile girls to decisions that reflect and reinforce traditional ideas of gender and age appropriate behavior.[9] As part of their traditional role as parens patriae, juvenile courts take a very protective view over teenage girls, declaring them a child in need of supervision for being ungovernable due to sexual activity.[10] Courts reserve heaviest judgement for young girls who “stray from the feminine ideal,” most often by becoming sexually active and losing the perception of virginal innocence.[11] Society usually sees these girls as having a “deeper set of problems” that can only be cured by the intervention of the juvenile justice system.[12] The system then tries to reform them into more “‘appropriate’ young women,” by punishing their sexual behavior.[13]

Girls face a confounding double standard in juvenile courts.[14] Of the juveniles referred to courts for the status offense of ungovernability, the majority are girls being referred for taking part in sexual behavior that their parents percieve as promiscuous.[15] Society generally condemns female promiscuity while celebrating the same behavior in males.[16] The sexual activity leading to the reports is not usually considered extreme or deviant when engaged in by teenage boys.[17] This shifting standard could be an explanation for the disparities between male and female status offenders. A 1995 survey found that 27.5% of arrests of girls were for status offenses, but only 10.5% of arrests of boys were based on status offenses.[18] A study in Connecticut showed that nearly twice as many girls faced status offender cases for sexual activity than boys, though Connecticut law does not specify between the sexes in its status offense law relating to sexual activity.[19] An inordinate number of girls are entering the juvenile justice system for being sexually active while boys taking part in the same activities are left to continue with their childhood uninterrupted.

The status offense system is used to control girls whom their parents suspect of promiscuous behavior.[20] Generally, juvenile status offender cases against sexually active girls start when a parent refers their own child to the courts.[21] These parents experience what has been referred to as a “reflexive reliance” on the courts to straighten out the girls.[22] This ideal is complicated by the function of the juvenile system itself, wherein juveniles are deprived of their liberty like an adult in the traditional criminal system, but they are also treated as children in the deprivation of due process rights.[23]

Once they enter the system for a status offense, it is all too easy for a girl to be adjudicated delinquent. Juveniles who commit status offenses cannot be incarcerated, but judges often “bootstrap” charges and incarcerate girls for violating court orders, transforming them from a status offender to a traditional delinquent.[24] The status offense court order will typically include provisions relating to attending school, following a curfew, and obeying parental authority, but judges have discretion to include “almost anything” in those orders, as long as it fits with the admittedly broad standards of the best interests of the child.[25] Girls who fail to comply fully with the status offender system are subjected to “increasingly punitive interventions” from the court, allowing charges to stack up against them.[26] Something as simple as staying out a few minutes past curfew or skipping class can lead to a girl being incarcerated as a delinquent, right alongside other juvenile delinquents.[27] The process of “bootstrapping” by juvenile judges has transformed the status offense system into a quasi-criminal system throughout most of the United States.[28]

Sexually active girls can quickly be labeled juvenile delinquents just by nature of being sexually active, while sexually active boys still receive a “boys will be boys” treatment regarding their own sexual activity. It is unacceptable to treat girls any differently than boys, just because society expects boys to be sexually active and girls to remain pure and innocent. That double-standard is impossible to enforce and leads to girls being shamed for a natural part of growing-up.

[1] See, e.g., Dixon v. State, 579 So. 2d 29 (Ala. Crim. App. 1990).

[2] Id.

[3] Id.

[4] Id.; Ala. Code § 13A-6-62(a)(1) (LexisNexis 2016).

[5] Ala. Code § 12-15-102(4) (LexisNexis 2016).

[6] Ala. Code § 12-15-201(4) (LexisNexis 2016).

[7] Kim Taylor-Thompson, Girl Talk – Examining Racial and Gender Lines in Juvenile Justice, 6 Nev. L.J. 1137, 1154 (2006).

[8] Id. at 1138.

[9] Id.

[10] Soma R. Kedia, Creating An Adolescent Criminal Class; Juvenile Court Jurisdiction Over Status Offenders, 5 Cardozo Pub. L. Pol’y & Ethics J. 543, 552 (2007).

[11] Taylor-Thompson, supra note 7, at 1138-39.

[12] Id. at 1140.

[13] Cynthia Godsoe, In Search of Meaningful Systemic Justice for Adolescents in New York: Contempt, Status, and the Criminalization of Non-Conforming Girls, 35 Cardozo L. Rev. 1091, 1109 (2014).

[14] Taylor-Thompson, supra note 7, at 1138.

[15] Kedia, supra note 10, at 546.

[16] Taylor-Thompson, supra note 7, at 1144.

[17] Kedia, supra note 10, at 552.

[18] Joyce London Alexander, Aligning the Goals of Juvenile Justice With The Needs of Young Women Offenders: A Proposed Praxis For Transformational Justice, 32 Suffolk U.L. Rev. 555, 569 (1999).

[19] Godsoe, supra note 13, at 1102.

[20] Taylor-Thompson, supra note 7, at 1144.

[21] Kedia, supra note 10, at 557-58.

[22] Taylor-Thompson, supra note 7 at 1139.

[23] Alecia Humphrey, The Criminalization of Survival Attempts: Locking Up Female Runaways and Other Status Offenders, 15 Hastings Women’s L.J. 165. 169 (2004).

[24] Id. at 1093-1100.

[25] Id. at 1100-01.

[26] Id. at 1093.

[27] Id. at 1101.

[28] Id. at 1104.

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