It’s been a month since allegations publicly surfaced asserting that Brett Kavanaugh, the most recent nominee for the U.S. Supreme Court, had sexually assaulted Christine Blasey Ford while they were both minors. Ford was 15-years-old at the time of the alleged incident, and Kavanaugh was 17. Although Kavanaugh has since been confirmed, Americans on both sides of the aisle remain locked in a heated debate over whether these allegations should have disqualified Kavanaugh from serving on our nation’s highest court.
Kavanaugh supporters did not use his youthful age at the time of the alleged incident to argue for his confirmation but, rather, held that he was innocent. Yet, Ford’s allegation provokes a question that’s worth considering in the context of the criminal justice system: Should age influence how we judge people for their actions? Developmental research and the juvenile justice system itself suggest that the answer is yes: In most instances, children should be assigned a different culpability for their actions, even when they commit sexual offenses.
Children and adolescents do not have a fully-developed frontal cortex — an important part of our brains that helps us make sound, logic-based decisions. Youth are more prone than adults to make emotional and fear-based decisions that result in impulsive and even aggressive behavior. They are also more easily swayed by their peers into taking negative courses of action.
This is the why we as a society have created a juvenile justice system that is separate from the adult justice system. The juvenile system attempts to protect youth from perpetual public damnation by keeping youth records private and allowing opportunities for expungement. Perhaps most importantly, the system is designed to focus more on rehabilitating youths than punishing them. Justice Anthony Kennedy captured this notion in Roper v. Simmons when he wrote, “[I]t would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”
Unfortunately, while we acknowledge youth are less culpable than adults and are great candidates for rehabilitation, the policies that determine how we hold those who commit sexual offenses accountable often fail to reflect this principle. In a well-meaning effort to protect our children and others from sexual trauma, we have enacted laws that extend punishment to a lifetime — even when the individuals who commit these crimes are children themselves.
For example, those convicted as youth for sexual acts may have to register under federal and state laws for their crime. In some instances, these adolescents may find themselves publicly declared to be sex offenders as adults without an assessment as to whether they are actually likely to commit such an act again. And once they are registered, community notification laws and restrictions on where registered individuals can live mean that punishment may continue long after those convicted of sexual misconduct have completed a sentence or treatment. Sadly, these policies tend to stigmatize those who made mistakes as youths, resulting in a sentence that they never truly finish serving.
Some have also debated whether these policies — community notification laws, residency restrictions and sex-offender registries — are effective means for promoting public safety. Sex-offender registries often include individuals who have committed a broad array of crimes. In some states, for instance, urinating in public or having consensual sex with another teenager could result in a young person’s being charged and labeled as a sex offender. Focusing law enforcement attention and resources on these individuals may distract officers from addressing behavior that is most likely to cause harm.
Moreover, a recently released policy study incorporating the voices of those who have been victims of crime suggests that victims care more about accountability measures being effective at promoting individual transformation than they do about punishment. Victims understand that youth who commit violent crimes — including sexual offenses — have often been victimized themselves and believe these youths should receive services that help them heal from their own trauma. They also recognize the importance of less punitive, community-based solutions to carrying out that agenda.
Kavanaugh did not end this process with a criminal record or his name on a registry. His hearings were about acquiring a benefit — a lifetime appointment to the Supreme Court. But there are plenty of people facing a lifetime of consequences for what they did as children.
In the #MeToo era, we are increasingly calling for support and justice for victims — and rightfully so. We have a terrible track record of doubting and ignoring survivors of sexual assault. It’s time that record ended.
Yet if we believe in the lesser culpability and rehabilitative potential of children, we must also reassess the penalties we’ve placed on youth found guilty of such acts to ensure they are accomplishing their intended purpose.