Colorado legislators are now considering a bill that would establish new, less severe penalties for teens caught sexting or sharing photos with a third party, something the bill's sponsor, Democratic state Rep. Pete Lee, said could help address situations where teens are "trading pictures of each other the way young kids trade Pokemon cards."
David Finkelhor, director of the Crimes Against Children Research Center, said bills that limit penalties for consensual sex are less about condoning the activity than acknowledging the long-term consequences for children with records as they head to college and look for jobs.
"The law is still far too punitive with juvenile offenders given that recidivism rates are low and rehabilitation rates are high and therapy seems to be successful," he said.
Legislators say crafting laws to limit sexual activity between teens requires striking a balance between giving young people a chance to explore their sexuality and protecting victims and punishing offenders when things get out of hand. Lawmakers in Montana resisted calls to expand the ages covered by the state’s Romeo and Juliet law even further for fear that young teens could be exploited. And in Colorado, prosecutors pushed to retain the right to charge some children with felonies.
"Fundamentally you have to understand that there are in fact sexual predators who are teenagers," Raynes said. "That's sad to say, but they're out there, and we need to have that tool available in those situations."
Sex with someone below the age of consent is typically illegal, but most states impose lesser penalties for consensual teen sex.
Some laws, like Hawaii's, allow teens who are close in age to have consensual sexual relations. But others, like Montana's still consider the act illegal and cover more narrow age ranges.
Under current Montana law, an offender who is more than three years older than the victim faces up to life in prison and must register as a sex offender. Offenders who are just two or three years older than victims face up to six months in jail for a first offense.
Under the new legislation approved by the Montana Legislature, sex between people 14 through 18 would still be illegal, but the punishment would be limited to five years in prison with judicial discretion over whether the offender needs to register. The bill is awaiting the governor’s signature.
"We are not exonerating 18-year-olds of their responsibilities to recognize the vulnerability of 14-year- olds who, by Montana law, are still children," bill sponsor Sen. Sue Malek, a Democrat, told the Montana Senate Judiciary Committee in January. But automatically adding perpetrators to the sex offender registry ruins their lives without making the community safer, she said. "We want to give an 18-year-old who believed they were in love, who made a serious mistake, a chance for a good life and future."
Malek's bill wouldn’t have helped Russell Foster, because he was a year past the top end of its age range. Prosecutors and those who treat sex offenders supported the bill, but groups including the American Civil Liberties Union of Montana called to expand the age range to include people in their early 20s.
Brenda Erdelyi, president of the Montana Sex Offender Treatment Association, said being attracted to a 14- or 15-year-old who has already gone through puberty doesn’t make young adults deviant. But brain development continues into the mid-twenties, and without fully developed prefrontal cortexes, young adults struggle more with problem-solving and impulse control. She suggested expanding the bill to cover 13- to 21-year-olds, as long as the activity is between people who are no more than five or six years apart.
But some legislators worried that expanding the age range would allow young adults to take advantage of children. “When you get to age 13, you’re bumping up on that boundary of being a real, actual child instead of an adolescent,” said Montana state Sen. Chas Vincent, a Republican.
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