Someone please tell me I'm over-reacting to this recent juvenile opinion from our state's supreme court that holds that no one under 14 can legally consent to a sex act ...

In re B.W. (h/t to SCOTXblog.com)

If those under 14 can't consent, doesn't it necessarily follow that they can't form the requisite mens rea for various sex crimes too?

Also: Despite the Court's protestations that the opinion does not bar adult prosecution for Compelling/Promotion of Prostitution involving those under 14, does their dicta make it so? I imagine this will be a popular basis for motions to quash in those cases.

Oh, and there's another one of these cases coming SCOTX's way involving a 16-yr-old prostitute. Wonder how they'll screw that one up?

My reading is the same as yours, unfortunately. That was our office's first reaction when we started going through this case. If "consent" is now part of forming mens rea, then I don't see any distinction between the prostitution case and sex assault.

While admittedly there can certainly be a large concern about the child herself being a victim of exploitation, I think that's a matter to be taken care of via prosecutorial discretion. Even this case alone doesn't sound like it was adults exploiting a helpless child. B.W. didn't have an adult pimp, and she apparently looked like an adult (she said she was 19 and the police believed her) so she didn't have the Lolita clientele. Wanting to protect children from being exploited is an excellent goal, but this decision sweeps in the 13-year-old who fully intentionally rapes a toddler.

I have been hoping more of the astute legal minds who read this forum will weigh in on this case.

I am curious about how, if at all, different offices are responding to this case in their prosecution of sex offenses. Although Justice O'Neill seems to try to limit her holding to prostitution, her reasoning would seem to apply across the board to any case involving a juvenile under 14 and a sex-related offense.

I have a case coming up with a juvenile who is 13 and a victim who is 11. This case has not been raised by the juvenile, but I am a little unsure of my ethical duty to either draw the court's attention to it or to factor it into my handling of the case.

Anyone have any new thoughts or developments on this subject? I just got a sexual assault committed by a 12-year-old.

At first I too read it to mean that someone under 14 could not be convicted of a sex act. However, I now believe they can.

Here's my thoughts. I welcome any comments, especially if I'm way out there.

BW speaks of consenting to engaging in sexual conduct. 43.02 speaks of engaging in a sexual conduct. The court in BW says they cannot consent based on the statutory language. However, 22.021 does not speak of engaging in sexual conduct per se. Instead it describes an act, such as causing the penetration. Then it speaks of the other person's consent. It doesn't speak of intent to arouse or anthing else. Just intentionally or knowingly cause the pentration. So I firmly believe that someone under 14 can intentionally and knowingly cause the pentration. In the petetion we don't allege they committed sexual conduct, but follow the statutory language.

I'm sure my thoughts are clear as mud. I hope someone understands what I'm trying to say.

I think I see what you mean.

Under the prostitution statute they have to knowingly agree to engaged in the act and that would imply they understood the full nature of the act. Under sexual assault they don't necessarily agree to do anything, they only have to intentionally or knowingly cause the pentration. Is that right?

My concern is the extent the Court relied on the sexual assualt statute for it's conclusion. It used that statute (along with the common law) to say that people under 13 could not consent to sex. While they may not have meant to say a person between 10-13 could not be prosecuted for sexual assault, it sounds like that is what they implied and, until that's clarified this case presents a problem.

The question for is....if 22.011 was used to justify it's decision in B.W. how is that not effectively made a part of the same statute it relied on? I woudln't this case will either be limited to its facts (she made the offer to an adult v. another juvenile) or the statute amended, but who knows right now.