This one may get me in a bit of trouble.
Like many Southern Californians (and perhaps others elsewhere), I have paid a modest amount of attention to what is generally known as the “Orange County Gang-Rape Case”. (For those unfamiliar with the case, visit the Orange County Weekly site for an exhaustive archive of articles). Bottom line: three teenage boys were accused of raping and sodomizing an unconscious 16 year-old girl; the key piece of evidence was a videotape shot by one of the boys. A mistrial was declared on Monday after the jury deadlocked on all of the counts, and despite the fact that most of the jurors favored the defense, the case will now be retried.
It’s hard to think of anything original to say about this sad story, except to give thanks that (as of yet) the videotape has not started making the rounds on the Internet. I do wish that the case had been tried in secret, so that none of the sordid details would have been leaked to the public. But since everyone in this part of the country is now familar with the case, I have a couple of quick thoughts. They center not on the facts of the case, but upon the age of the victim and of the accused.
My heart breaks for the very troubled young girl whose violation is at the center of this case. My sympathies are, first and foremost, with her. But though I imagine it will annoy a few of my readers to say this, I confess that I am not without sympathy for the young men who have been accused in this crime. They face over 50 years in prison if convicted on all counts. In my mind, no teenager should ever face such a lengthy sentence.
As a volunteer youth pastor, I work regularly with 16 and 17 year-old boys (the age of the trio accused in Orange County). The longer I work with them, the more I love them. And the longer I work with them, the more convinced I am of just how very, very young most adolescents in our society truly are. I have always hated the idea of trying juveniles as adults. I hated it when I was a teenager, because it seemed unfair to give kids the same consequences as grown-ups without giving them the same freedoms. (Frankly, my position on that hasn’t changed — freedom and responsibility ought always to be concomitant.) But now, I hate it even more because I have come to realize that in no meaningful sense can adolescents truly be considered adults. That’s a sweeping statement, but the more experience I have with teens, the more convinced I am of its essential truth. And as a result, (I’m bracing myself for the inevitable reaction), I think there is a world of difference between a sexual assault committed by a 17 year-old and one committed by a 30 year-old, and I think the legal system ought to acknowledge that distinction. (I am, naturally, clear on the obvious fact that from the standpoint of the victim’s pain, that distinction may not exist.)
Recent studies have shown that adolescent brains don’t work the way adult brains do:
The researchers found that when processing emotions, adults have greater activity in their frontal lobes than do teenagers. Adults also have lower activity in their amygdala than teenagers. In fact, as teenagers age into adulthood, the overall focus of brain activity seems to shift from the amygdala to the frontal lobes.
The frontal lobes of the brain have been implicated in behavioral inhibition, the ability to control emotions and impulses. The frontal lobes are also thought to be the place where decisions about right and wrong, as well as cause-effect relationships are processed. In contrast, the amygdala is part of the limbic system of the brain and is involved in instinctive “gut” reactions, including “fight or flight” responses. Lower activity in the frontal lobe could lead to poor control over behavior and emotions, while an overactive amygdala may be associated with high levels of emotional arousal and reactionary decision-making.
I’m no brain expert, but I’ve spent plenty of time with teenagers to become quite clear on the premise that virtually all teens have trouble with “behavioral inhibition”. Add in alcohol (something that everyone in the OC rape case admits was involved), and adolescents simply have a drastically diminished capacity to make appropriate moral judgments. To acknowledge this is not bleeding-heart liberalism, it’s sound common sense.
I am not for a moment suggesting that these boys in Orange County ought to go unpunished. The fact that they had a diminished capacity to make good decisions does not, of course, vitiate their responsibility to refrain from drugging and violating another human being. But a fair and just legal process would take the age of all parties involved into account, both in terms of establishing guilt and, far more importantly, in terms of providing a penalty. Knowing that those boys might go to prison for more than half a century would make it impossible for me to serve on their jury. From a moral standpoint, had I been on the OC jury, I would have felt compelled to vote for a not-guilty verdict (despite the evidence), merely because such a lengthy sentence cannot, in my mind, ever be appropriate for someone who is not mentally, intellectually, or emotionally fully adult. (Parenthetically, I’ve been excused from two jury panels because when asked, I twice said that I could not imagine convicting someone of a crime without knowing exactly what punishment they might face. Call me crazy, but if I can’t have a say in the penalty phase, I won’t even dream of participating in the guilt phase.)
I am not proposing letting the boys walk without consequences. I am proposing that if found guilty, the focus should be on restorative justice. What might that look like? Here’s how it generally works:
(Restorative justice revolves around conferences). A conference is a structured meeting between offenders, victims and both parties’ family and friends in which they deal with the consequences of the crime and decide how best to repair the harm. Neither a counseling nor a mediation process, conferencing is a straightforward problem-solving method that demonstrates how citizens can resolve their own problems when provided with a constructive forum to do so.
Conferences provide victims and others an opportunity to confront the offender, express their feelings, ask questions and have a say in the outcome. Offenders hear firsthand how their behavior has affected people. They may begin to repair the harm by apologizing, making amends and agreeing to financial restitution or personal or community service work. Conferences hold offenders accountable while providing them an opportunity to discard the “offender” label and be reintegrated into their community, school or workplace.
The victim in the OC rape case may well need the opportunity to confront those who raped her. The boys need the opportunity to see her as a human being, and recognize the harm they did. And the legal system needs to recognize that they are dealing with teenagers, complex creatures who are hardly innocent children, but who at the same time cannot be considered rational adults. Rape is a very, very serious crime — but even the most serious crimes must be seen differently when committed by the as of yet biologically and intellectually immature.
Restorative justice sounds like a good idea for offenders of any age (though punishment-as-deterrent has an important place as well). I think we too often think that, because someone has done something wrong, we need to cast them out of society. In reality, they’ve cast themselves out through their crime and need to be brought back in.
Absolutely, Stentor — it’s just that I think restorative justice is particularly appropriate for adolescents, whose capacity to grow and learn and develop is so tremendous.
Hugo, I would generally agree with you. The problem is that our society doesn’t seem to be much interested in restorative justice or rehabilitation. In Oregon a couple of years ago, we actually amended our state constitution to say that the primary purpose of criminal penalties is punishment, not rehabilitation.
It shocks me that as a country we’re so willing to give up on people. I don’t think it says a whole lot for our future.
I sense a disconnect here. The first sentence sounds as though you’ve already convicted the three boys in your mind. If you haven’t, the unqualified statement that the girl was “violated” seems inappropriate. If you have, why the reference to the young men who “have been accused” rather than to the three young men who did it?
I don’t think, XRLQ, that there’s any question that she was violated –the question is whether or not she was legally raped. I’m using violation in a holistic sense, not a legal one…
Without knowing all the details of the case, I would strongly agree that 50 years is a long time to punish teens who honest-to-God don’t have the maturity to understand fully what their actions mean to others as well as to themselves. Mitigating circumstances of course should be considered such as alcohol use. We must learn to forgive, and to wield punishment geared towards the crime with attention paid to the circumstances and the mentality of the individuals involved. Had this same scenario occurred, for example, amongst a group that established rape as an initiation rite, then the entire situation is changed. And, if the scenario had included adults–even one–that would, in my mind, change it again. The problem, however, is that the law doesn’t trust a jury to agree on exactly “how” they see a set of circumstances.
The boys claim that the act was entirely consensual, and that she was not unconscious, having merely feigned unconsciousness for purposes of making an amateur porn video. If what they are saying is true, she wasn’t violated. If it was not true, the boys are guilty of rape. I don’t think there is a third possibility; am I wrong?
Even if the boys’ story is true (and I have a hard time with it), violation can coexist with consent. I’m talking about psychological and spiritual violation here.
We had a case here in which a 13-14 year old was found guilty of gang murder. He could barely see over the dock, and the jury wept as they found for the Crown. He got 15 years-A sentence ludicrously short for beating a pizza delivery chap with an iron bar just because he could. If they are old enough to commit the crime, they are old enough to know the difference between right and wrong, they’re old enough to take the proper punishment. “Diminished capacity”! Ha!
I won’t argue the scientific arguments about brains and such, but in our American culture, there has been a lot more awareness of and advocacy against rape than there used to be. I don’t see how any teenage boy could not know or understand exactly what rape is anymore, whether or not their brains are fully mature. I do think fifty years is a long time, but the link you provided said that would be the maximum sentence if they were convicted on all counts, and that the minimum could be probation (I think.)
Restorative justice…would that preclude jail time, even in a juvenile detention center? You spoke of them being reintegrated into their community. (I couldn’t imagine being this girl and having to see these boys at school or around town again.) Is that instead of serving a sentence or afterwards?
I’m not sure it would preclude incarceration. Some forms of restorative justice do involve limited incarceration (or work-release programs). And of course steps should be taken to minimize undesired contact between offenders and victim (or the survivor, as some folks prefer it).
I honestly don’t know what to think about this case. I worked with adjudicated youth for many years. The program where I worked did an excellent job with the kids–victim empathy, working on thinking errors, etc. However, I’ll never forget the kid I worked with who seemed cold, and was. He committed capital murder when he was 19–robbed and killed a prostitute. Knowing him, I know he knew exactly what he was doing. The thing that breaks my heart is that it seems that some of these kids never have a chance from the get-go.
Hugo- As usual, you raise provocative issues
I’m wondering about two of your statements:
(Frankly, my position on that hasn’t changed — freedom and responsibility ought always to be concomitant.)
I think there is a world of difference between a sexual assault committed by a 17 year-old and one committed by a 30 year-old,
Would you say there is a world of difference between a sexual assault committed by a 17 year-old and one committed by an 18 year-old? The 18 year-old enjoys a vastly greater amount of freedom and thus from your first statement a resulting greater amount of responsibility.
Perhaps we need as a society to redefine what it means to be an adult.
And restorative justice is an appealing concept..just need to include as part of it the no-kidding “how many second-chances do you get
before we actually throw away the key” standard if we’re going to invest a lot of resources to bring you back into society. Fool me once..
I agree wholeheartedly that one’s cognitive ability should clearly be considered in a “consequence/punishment” phase. And I agree that restorative justice makes sense FOR CERTAIN CULTURES. The Christian community ought to embrace such a practice as reconciliation is central to our faith. But let’s face it. This is not the culture of the US. Punishment seems to be the goal of American justice, not rehabilitation.
Finally, though restorative justice can be good for a host of situations, I think it is INAPPROPRIATE in some situations for exactly the same reason that punishing a 17 year old for 50 years is inappropriate. An adolescent or child victim of rape could no more psychologically handle such a ‘facing the victimizer’ as the ‘victimizer’ could adequately face the victim. Parents learn when to intervene between 2 children and how to help them resolve some conflicts. Adults should also know when to recognize that the young are simply NOT YET ready to deal with such violation. It will clearly be a goal for later, but let’s not assume a child can make restoration with a rapist who is himself a child until a time at which they have much more maturity. In the meantime, let’s focus our efforts as a public on helping the victim through support and counseling AT PUBLIC EXPENSE.
Oh, and let’s bring justice by mandating counseling for the victimizer (whether behind bars or not as appropriate) until the court has deemed that youth ready to make restitution.
You’ve touched on an interesting juxtaposition i’ve been wrestling with for some time.
One one hand:
“Kids have to gow up so fast these days - sex, drugs, violence, etc”
While on the other:
“Adults are maturing much later in life: waiting to get married, waiting to have kids, waiting to move out of mom & dads house, waiting to establish careers, etc.”
I fear that both statements are true, and that culturally we are slowly being poisoned by Peter Pan disease.
I dunno, just FWIW…
Good point. Query whether, and to what extent, such Peter Pan-ism may be exacerbated by a policy that assumes lawbreakers weren’t old enough to know what they were doing, even if they were.
Hugo–*great* post. Best thing I’ve read here since I started reading you a few months ago.
One argument you hear in favor of trying children as adults is that if the crime is bad enough, it’s an “adult crime” and they should be treated as such.
To which I respond–if a 50 year old spraypaints “Class of 72 rules” on the side of the high-school gymnasium, should they be tried as a juvenile because of the nature of the crime?
What is happening to our kids.And when will we see that this is a really huge problem.What are we going to do?. I feel very compelled to do something because we are loosing our youth to a lot of senseless killing and things. What ever happened to just fighting it out where did all the gangs and ideas to kill a person. I insist that congress and the other law maker take a look at the crime rate all over and come up with other solutions. Like the person who killed another person father has to pay that family for the rest of his life. SO his little job in prison money will go to the family of the person they killed.They will never forget that family becayse he will be paying them all his life. Something has got to give.
Query whether, and to what extent, such Peter Pan-ism may be exacerbated by a policy that assumes lawbreakers weren’t old enough to know what they were doing, even if they were.
Query additionally whether statutory-rape laws, raising the drinking age to 21, and a mininum age for entering military service also exacerbates the problem. Suggestion that the answer to all is ‘probably not’.
(Myself, I think it has a lot more to do with Boomers refusing to realize the adult response to once having said “don’t trust anyone over thirty!” is not to fight being over thirty tooth and nail.)
I’m not sure if you know this, Hugo, but about two weeks ago, a 17-year-old boy (or maybe he was 18) was murdered in a drive-by shooting several blocks away from my house. My brother even knew the guy who was murdered. It was racial: the boy who was killed was black, and apparently the killers were white racists.
You can check out the full story here: http://www.pasadenastarnews.com/ci_6532038?source=most_viewed
I don’t know about you, but gang raping women and murdering people is wrong no matter how old you are. I want to see whoever killed the young man locked up for life.
Mermade, I think the drinking age should be 21 for a reason. For that very same reason, which has to do with issues of responsibility and decision-making, those who are not legally adult shouldn’t be punished as are adults.
Rights and responsibility exist in a healthy tension; those who do not have all of the former cannot be held fully to the standard of the latter.
Nope. Sorry. I don’t agree. I think the boys who shot the black guy knew well what they were doing as much as any “adult” would and therefore should be tried as adults. The same goes for the gang rapists, IMHO.
I don’t know why, but your arguement on this one offends me a bit (as you suspected it might, for some of your readers). I guess we have to just agree to disagree.
Mermade, as a thought experiment, explain this: Why try juveniles as adults for crimes while denying them access to alcohol, cigarettes, and the vote? If they are old enough to be held responsible in precisely the same way as adults for crime, aren’t they old enough to be allowed to drink? The age of majority has, traditionally, meant a threshold of responsibility.
This is why, as I always remind my History 1B students, Gavrilo Princip (age 19) did not get the death penalty for killing Franz Ferdinand in 1914. He wasn’t a legal adult yet under Austro-Hungarian law. 97 years ago, the Austrians had a consistency we don’t yet have — and we now know so much more about brain development.
Remember that leniency for the perpetrators should never be construed as lack of horror at the crime…
I guess I just don’t lump getting the right to vote, drinking and buying cigarettes with rape and murder. The former are age-appropriate privilges, the latter are crimes no matter how old you are. When I was seventeen, I knew as much as any 40-year-old that killing someone on the basis of race is wrong. I don’t know how I feel about the death penalty — but I do think that the guys who gang raped that girl and the guys who murdered the guy on my street should be locked up for a very, very long time.
Another case I heard about was regarding a guy in Florida. My memory of this story is very vague, but here is what I remember: some guy shot a little girl. He said it was an accident, so he only got five years in prison. I think he was a teenager, too. Anyway, when he got out after five years, he murdered someone again. I highly doubt his first crime was an accident. But again, I am not sure about the death penalty. I agree with your lesson in regards to the History 1B story.