Utah, US -- Utah Supreme Court justices acknowledged Tuesday that they were struggling to wrap their minds around the concept that a 13-year-old Ogden girl could be both an offender and a victim for the same act - in this case, having consensual sex with her 12-year-old boyfriend.
The girl was put in this odd position because she was found guilty of violating a state law that prohibits sex with someone under age 14. She also was the victim in the case against her boyfriend, who was found guilty of the same violation by engaging in sexual activity with her.
"The only thing that comes close to this is dueling," said Justice Michael Wilkins, noting that two people who take 20 paces and then shoot could each be considered both victim and offender.
And Chief Justice Christine Durham wondered if the state Legislature had intended the "peculiar consequence" that a child would have the simultaneous status of a protected person and an alleged perpetrator under the law.
The comments came in oral arguments on a motion asking the high court to overturn the finding of delinquency - the legal term in juvenile court for a conviction - against Z.C., who became pregnant after she and her boyfriend engaged in sex in October 2003. State authorities filed delinquency petitions in July 2004, alleging that each had committed sexual abuse of a child, a second-degree felony if committed by an adult.
The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated. Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime. Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor, but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor.
For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex. A juvenile court judge denied the motion by Z.C., who then admitted to the offense while preserving her right to appeal to a higher court. The Utah Court of Appeals last December upheld the judge's refusal to dismiss the allegation.
At Tuesday's arguments, Matthew Bates, an assistant Utah attorney general, argued the prosecution of the girl was not unreasonable. He said the statute in question is designed to prevent sex with children who are 13 and younger, even if the other person is in the same age group. By passing that law, legislators were sending a message, Bates said: Sex with or among children is unacceptable.
Randall Richards, the girl's attorney, argued that prosecuting children under a law meant to protect them is illogical.