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2 Defining and Measuring Offenses by and Against Juveniles

Chapter Learning Objectives On completion of this chapter, students should be able to do the following:

Understand and discuss the importance of accurately defining and measuring delinquency Understand the impact of differences in definitions of delinquency Discuss legal and behavioral definitions of delinquency Discuss official and unofficial sources of data on delinquency and abuse and the problems associated with each

What Would You Do?

Tommy could hear his mom sobbing and crying through the thin wooden door in the mobile home. He looked up at his older brother, Robbie, and asked him, “When do you think he will stop?”

Robbie said in a low voice, “Shhh . . . she will apologize and then he will eventually calm down and they will go to the bedroom. After that, it will be okay.”

But this time it was different. Both Tommy and Robbie heard a loud yelp that made their blood run cold. Tommy looked under the crack of the door and could see his father’s boots moving, apparently kicking his mother in the ribs as she struggled to get away on all fours.

“He’s kicking her really bad, Robbie. . . . I’m afraid he might kill Momma this time.” Robbie listened to the shrieks and groans of his mother in misery and looked down at his 5-year-old brother.

“Tommy, you gotta stay in here, okay? Don’t come out after me, and don’t get between me and Dad. I don’t wanna hurt you by accident, okay?”

“But . . .” Tommy tried to argue, but Robbie quickly put a hand over the child’s mouth.

“We can’t argue about this. There’s no time. . . . You don’t want Momma to die, do you?”

Tommy shook his head no.

“Then you do as I tell you, until the coast is clear, okay?”

“Okay,” said Tommy.

“Promise!” demanded Robbie.

“I promise,” said Tommy.

In a flash, Robbie went to the back of the room and reached up high in the closet to pull out a.22 Winchester rifle that his grandfather had given him for squirrel hunting a few years back. The 15- year-old motioned for his little brother to get on the bed against the wall.

“But Robbie . . .” said Tommy.

“Shhh! Be quiet, dammit! Don’t go getting scared on me. Just hide behind the bed,” said Robbie, heart pounding, sweat already building on his forehead.

Robbie opened the door, held the rifle up against his shoulder, and, with it pointed forward, walked down the cheaply paneled hall of the mobile home, arriving in the living room in five quick long gaits. He stood there, gun pointed at his father, who, for a moment, was surprised but then started grinning.

Robbie’s mother, still on the ground in the corner of the living room, said faintly, “Robbie, no.”

His father then said, “Yeah, Robbie, why don’t you stud up? It’s about that time now, huh?” as he moved slowly toward Robbie.

“You stay there or I’ll shoot!” said Robbie.

His mother said, “Frank, please leave him alone; he’s just worried about me,” at which point Frank quickly turned, pointed a finger at her, and said, “You both should be worried. I’m gonna kill both of your asses!”

Frank turned back and faced Robbie. Robbie’s hands were sweating and he was shaking a little. He only had this .22, not exactly a powerful gun, and no hollow points at that. Robbie was terrified. If he did not shoot, he knew Frank would likely put him in the hospital, might kill his mom, and might even hurt Tommy as well. If he did shoot, he would need to do so more than once because one shot would not be enough to stop him.

Frank took another step, saying, “You ain’t got it in ya! Yer yella, just like your mommaaaa. . . .”

The gun went off. The clip that Robbie had loaded the day before let him fire rounds as fast as he could repetitively pull the trigger. The first shot went right through Frank’s right eye; the second went into the front of his neck at an angle, as did the third. The fourth went into his heart. The others missed, for the most part, but Frank was on the ground, heaving.

A few minutes later, the police arrived on the scene of a homicide.

While they took down the information from all parties at the house as well as others who lived in the trailer park, they were compelled to put Robbie in cuffs and take him into booking.

What Would You Do? 1. Judging by the circumstances, would you define this crime as one committed by a

juvenile, or should Robbie be waived to adult court? Explain your answer. 2. How would you identify and measure the various crimes committed at this scene? 3. How could victim blaming become a problem in a case such as this? 4. What would you have done if you were in Robbie’s position?

One of the major problems confronting those interested in learning more about offenses by and against juveniles involves defining the phenomena. Without specific definitions, accurate measurement is impossible, making development of programs to prevent and control delinquency and offenses against juveniles extremely difficult.

There are two major types of definitions associated with delinquency. Strict legal definitions hold that only those who have been officially labeled by the courts are offenders. Behavioral definitions hold that those whose behavior violates statutes applicable to them are offenders whether or not they are officially labeled. Each of these definitions has its own problems and implications for practitioners and leads to different conclusions about the nature and extent of offenses. For example, using the legal definition, a juvenile who committed a relatively serious offense but was not apprehended would not be classified as delinquent, whereas another juvenile who committed a less serious offense and was caught would be so classified.

Legal Definitions

Changing Definitions A basic difficulty with legal definitions is that they differ from time to time and from place to place. An act that is delinquent at one time and in one place might not be delinquent at another time or in another place. For example, wearing gang colors or using gang signs may be a violation of city ordinances in some places but not in others. Or the law may change so that an act that was considered delinquent yesterday is not considered delinquent today. For instance, the Illinois Juvenile Court Act of 1899 defined as delinquent any juvenile under the age of 16 who violated a state law or city or village ordinance. By 1907, the definition of delinquency had changed considerably to include incorrigibility, knowingly associating with vicious or immoral companions, absenting oneself from the home without just cause, patronizing poolrooms, wandering about the streets at night, wandering in railroad yards, and engaging in indecent conduct. Definitions of delinquency have changed and expanded over the years. Alabama’s

current Juvenile Court Act defines a delinquent act as “an act committed by a child that is designated a violation, misdemeanor, or felony offense pursuant to the law of the municipality, county, or state in which the act was committed or pursuant to federal law” (Alabama Code, 208, Title 12, Chapter 15, Section 12:15:102, 2013). The definition continues to exclude 16- and 17-year-olds who violate nonfelony traffic or water safety laws, commit a capital offense, commit crimes classified as Class A felonies in Alabama or that involve using a deadly weapon or cause death or serious physical injury, engage in drug trafficking, and commit serious felonies involving certain authority figures such as teachers and court or law enforcement personnel. As Alabama demonstrates, legal definitions are limited in their applicability to a given time and place because of inconsistencies throughout the states. You will note as we proceed through this text that examples provided are from the Illinois Juvenile Court Act (Illinois Compiled Statutes [ILCS], ch. 705, 2013). Illinois has been a national leader in the field of juvenile justice (Fanton, 2006), and other states such as Missouri and Georgia are providing leadership as well. Although it is impossible to cite all of the statutes from the 50 states in the confines of the text, we have included examples of statutes from other states throughout and strongly encourage you to access online recent court cases and the statutes of the state in which you reside to compare and contrast them with the sample statutes cited in the text. This is important because statutes and court decisions relating to the juvenile justice system are in a constant state of change.

Age Ambiguity Another problem with legal definitions has been the ambiguity reflected with respect to age (age ambiguity) (as noted in In Practice 2.1). What is the lower age limit for a juvenile to be considered delinquent? At what age are children entitled to the protection of the juvenile court? Although custom has established a lower limit for petitions of delinquency at roughly 7 years of age, some states set the limit higher and a few set it lower. For example, some states have statutes that set the minimum age of juvenile court delinquency jurisdiction. In other states, the minimum age is not specified in statute but is governed by case law or common law. One state sets the minimum age at 6 years, three states set the minimum age at 7 years, one state sets the minimum age at 8 years, and 11 states set the minimum age at 10 years (Sappenfield, 2008).

Thinking with respect to the minimum age at which children should be afforded court protection changed with the emergence of crack cocaine and methamphetamines, both of which may have serious prenatal effects (Wells, 2006). According to Illinois statutes, for example, any infant whose blood, urine, or meconium contains any amount of a controlled substance is defined as neglected (ILCS, ch. 705, art. 2, sec. 405, 2013).

In Practice 2.1: Juvenile Prostitution, Age Ambiguity, and Distinguishing Victims From Offenders: New Developments In Associated Definitions and Response During the early months of 2016, police in the state of Wisconsin apprehended a victim of sex trafficking who was 16 years old; she had been trafficked since the age of 13. At the time of her abduction, she was sexually assaulted and, shortly thereafter, manipulated through coercion, threat, and intimidation into prostitution. Through brainwashing, threats followed by make-up periods, and other techniques both overt and subtle, an emotional attachment was developed between the girl and her pimp. He became, in essence, her boyfriend.

Unexpected amid this victimization was that this girl, according to Wisconsin law, was considered a criminal for her acts of prostitution.

As a result of this and other similar cases, lawmakers and various advocacy groups pushed for these laws to change so that individuals in these circumstances would be seen solely as victims and in the future would be shielded from criminal charges.

Social movements like the one in Wisconsin have emerged in a number of states throughout the nation. In fact, this push for social change in how prostitution in general, and underage prostitution in particular, is viewed is so widespread that a term has emerged to describe the proposed legal changes among state legislatures: safe harbor. These so-called safe-harbor proposals call for legislation that would prohibit charging any person under 18 years of age with prostitution. Whereas this is the most common form of safe-harbor law, other states have implemented versions that decriminalize minors who are 16 or younger, holding those 17 and older culpable and therefore chargeable for prostitution.

Whereas it would seem, on the face of it, that these laws would get automatic support, this has not been the case. Indeed, many states have encountered opposition to such blanket laws to decriminalize prostitution among underage youth because this would undermine the ability of police to intervene and exert their authority over the youth. In other words, law enforcement needs to have the legal ability to detain the underage prostitute for a period as a means of separating her from her pimp, stepping up efforts to charge the pimp, and to arrange for services for the underage individual in their custody. With no criminal violation from which to operate, the power of the police is much more limited.

Currently, there are about a dozen or so states that have decriminalization statutes in place for minors involved in prostitution (Aslanian, 2016). However, this has proven to be no panacea for this issue because many of these youth involved in prostitution do not see themselves as in need of help. Many come from horrible backgrounds and see their pimps as boyfriends and the other women with whom they work as part of their family. There are a multitude of social, emotional, and economic challenges that keep these youth working in prostitution.

Further, though most states do not yet have safe-harbor laws, this does not necessarily mean that these states simply turn a blind eye to this issue. Rather, many of these states have diversion programs or other forms of alternative assistance available. The line of thought is that whereas youth may still be charged with prostitution, they will be able to benefit from more solid law enforcement intervention and follow-up assistance that will, at least in theory, be more successful in permanently removing youth from prostitution.

This In Practice brings to light how age ambiguity affects public views of at least one type of crime. Many states provide no distinction between prostitutes under the age of 18 and those over the age of majority. In other states, the bar is set at 16, holding girls 17 and older as guilty of their activity in prostitution.

Further, this In Practice also aligns with what is discussed in the next subsection of this chapter dealing with inaccurate images of offenders and victims. As has been shown, states have typically had a difficult time delineating between those who are victims and those who are offenders with underage prostitution. In some cases, states may view these individuals as one or the other, but in other cases they may view them as both.

The fact that many of these victims will outright lie to law enforcement and/or courthouse officials to protect their pimp and/or defend their lifestyle makes these determinations even more difficult. Simply put, some of these youth do not see themselves as victims and do not want assistance from law enforcement or otherwise. For those youth who come from abusive or neglectful families, the unwillingness to disclose this prior abuse means that individuals may not be recognized as in need of services. In addition, official statistics related to child abuse and neglect will continue to have inaccuracies in the data that could have been otherwise remedied. Finally, the willingness of both youth and the justice system to reframe the view of this activity can contribute to various potential sources of error in official statistical counts. In addition, justice might also be served in a manner that is more appropriate for each actor involved.

S o u rc e s :S o u rc e s : Aslanian (2016); Speckhard (2016).

Questions to Consider 1. True or False: Some youth drawn into prostitution view their pimp as their friend or family

member. 2. Multiple Choice: Proposed legal changes among state legislatures regarding underage

prostitution have been referred to as what kind of proposals? a. Antivictimization b. Sexual racketeering reformation c. Anti–sexual trafficking d. Safe harbor

3. Explain the advantages and disadvantages to the decriminalization of juvenile prostitution statutes.

There is also considerable diversity with respect to the upper age limit in delinquency cases. Three states set the maximum age at 15 years, 10 states set the maximum age at 16 years, and 37 states (and the District of Columbia) set the maximum age at 17 years (Office of Juvenile Justice and Delinquency Prevention [OJJDP], 2013). Some states set higher upper age limits for juveniles who are abused, neglected, dependent, or in need of intervention than for delinquents in an attempt to provide protection for juveniles who are still minors even though they are no longer subject to findings of delinquency. Illinois recently changed its maximum age limit depending on whether the offense

committed by the juvenile would be a felony (17 years of age) or a misdemeanor (18 years of age) (ILCS, ch. 705, 405/5 [3], 2013). And in most states, juvenile court authority over a juvenile may extend beyond the upper age of original jurisdiction (frequently to the age of 21).

An example of the confusion resulting from all of these considerations is the Illinois Juvenile Court Act (ILCS, ch. 705, 2013). This act establishes no lower age limit; establishes the 17th birthday as the upper limit at which an adjudication of delinquency for serious offenses may be made while setting the limit at the 18th birthday for misdemeanors; makes it possible to automatically transfer juveniles over the age of 15 years to adult court for certain types of violent offenses; and sets the 18th birthday as the upper age limit for findings of abuse, dependency, neglect, and minors requiring intervention. Adding to the confusion is the distinction made in the Illinois Juvenile Court Act between minors (those under 21 years of age) and adults (those 21 years of age and over). This raises questions about the status of persons over the age of 18 but under 21 years. For example, a 19-year-old in Illinois is still a minor (although he or she may vote) but cannot be found delinquent, dependent, neglected, abused, or in need of intervention. Such ambiguities with respect to age make comparisons across jurisdictions difficult.

Are race and ethnicity really major factors in delinquency? Official statistics point to higher crime rates among minorities; however, self-report studies claim otherwise.

© iStockphoto.com/Mercedes Lorenzo Finotti

Inaccurate Images of Offenders and Victims

Yet another difficulty with legal definitions is that they may lead to a highly unrealistic picture of the nature and extent of delinquency, abuse, neglect, and dependency. Because these definitions depend on official adjudication, they lead us to concentrate on only a small portion of those actually involved as offenders and victims. This means that a substantial amount of illegal behavior committed by youth is not detected.

Similar problems arise when considering abuse and neglect because only a small portion of such cases are reported and result in official adjudication. In short, most juvenile offenders and victims never come to the attention of the juvenile court, and a strict legal definition is of little value if we are interested in the actual size of offender and victim populations. It may well be, for example, that females are more involved in delinquent activities than official statistics would lead us to believe. It may be that they are not as likely to be arrested by the police as their male counterparts. Not infrequently, we have seen police officers search male gang members for drugs and/or weapons while failing to search females who are with the gang members. It does not take long for the males involved to decide who should carry drugs and weapons. Similarly, blacks and other minority group members may be overrepresented in official statistics simply because they live in high-crime areas that are heavily policed and, therefore, are more likely to be arrested than those living in less heavily policed areas. For example, of all juveniles (individuals under the age of 18) arrested in 2011 in the nation, 65.7% were white, 32.0% were black, and 2.3% were of other races. Juveniles who were black accounted for 51.4% of juvenile arrests for violent crimes, although black youth accounted for about 16% of the youth population ages 10 to 17. Table 2.1 shows the proportion of arrests for black juveniles in 2011.

Table 2.1 Proportion of Black Juvenile Arrests in 2011

Most Serious Offense Proportion of Black Juvenile Arrests in2011

Murder/nonnegligent manslaughter 54.3%

Rape 34.3

Robbery 71.4

Aggravated assault 43.4

Burglary 40.2

Larceny-theft 36.4

Motor vehicle theft 43.6

Weapons carrying/possession 38.1

Drug abuse violation 24.4

Curfew and loitering 44.8 S o u rc e :S o u rc e : Federal Bureau of Investigation (FBI) (2015). Adapted from Table 43B. N o t e :N o t e : Whether these official statistics accurately reflect levels of black juvenile participation in the crimes listed depends on factors such as disproportionate impact discussed throughout this chapter (see especially the forthcoming section on official statistics) and in Chapters 3 and 8.

A final difficulty with legal definitions also characterizes behavioral definitions and results from the broad scope of behaviors potentially included. Does striking a child on the buttocks with an open hand constitute child abuse? What does beyond the control of parents mean? How is incorrigible to be defined? What does a “minor requiring authoritative intervention” (MRAI) look like? Although all of these questions may be answered by referring to definitions contained in state statutes, in practice they are certainly open to interpretation by parents, practitioners, and juveniles themselves. It should be noted that the broader the interpretation, the greater the number of victims and offenders.

Behavioral Definitions In contrast to legal definitions, behavioral definitions focus on juveniles who offend or are victimized even if they are not officially adjudicated. Using a behavioral definition, a juvenile who shoplifts but is not apprehended is still considered delinquent, whereas that juvenile would not be considered delinquent using a legal definition. The same is true of a child who is abused but not officially labeled as abused. If we concentrate on juveniles who are officially labeled, we get a far different picture from that if we include all of those who offend or are victimized. Estimates of the extent of delinquency and abuse based on a legal definition are far lower than those based on a behavioral definition. In addition, the nature of delinquency and abuse appears to be different depending on the definition employed.

We might assume, for example, that the more serious the case, the greater the likelihood of official labeling. If this assumption is correct, relying on official statistics would lead us to believe that the proportion of serious offenses by and against juveniles is much higher than it actually is (using the behavioral definition). Finally, relying on legal definitions (and the official statistics based on such definitions) would lead us to overestimate