Oregon State Bar Bulletin — MAY 2008

Brittany, 14, is having sex with her 18-year-old boyfriend, Conner.

She’s old enough to get birth control: in Oregon, anyone can get birth control or treatment for sexually transmitted diseases (STDs). But she can’t drive herself to Planned Parenthood because she can’t get her license until she is 16. And, at 14, although she’s having sex with Conner, she’s too embarrassed to talk to him about birth control.

Not surprisingly, Brittany gets pregnant. Under Oregon law, she’s not old enough to marry Conner, even if her parents consent. But she is old enough to decide whether to have an abortion, place her baby for adoption or keep it.

Brittany opts for abortion. She wishes Conner could go to the clinic with her, but he’s now in jail, convicted of having sex with her when he is more than three years older. So Brittany consoles herself by sneaking a few beers from her parents’ fridge: at 14, it will be seven years before she can drink legally.

In the last few years, even Oregonians who aren’t working with or raising adolescents like Brittany have become aware that "when is a child not a child" — for the purpose of acquiring a legal right or responsibility — can be a confusing and controversial issue.

For example, in February 2007, the Yamhill County District Attorney’s Office attracted nationwide attention when it filed felony sex abuse charges in juvenile court against two 13-year-old boys for "butt-slapping" female classmates.

Some experts maintained that the boys were too young to understand the potentially criminal nature of their conduct. But a year later, in a child-custody case, the Oregon Supreme Court ruled that another boy — who was a year younger — had the right to be consulted on whether he wanted to be circumcised as part of his conversion to Judaism.

"Some of the ages at which juveniles acquire rights and responsibilities appear in juvenile law, some in domestic relations," observes Julie McFarlane, supervising attorney of the Portland-based Juvenile Rights Project. "So they’re all in different courts. You get these decisions that don’t go together very well."

University of Oregon School of Law professor Leslie Harris, who wrote the bar’s Juvenile Law CLE’s chapter on the rights of children and adolescents, says, "People try to figure out if there’s a rationale for the different ages, and if it’s a consistent rationale. But any argument that there’s some kind of master plan, is wrong."

Evolution of the Age Concepts
Behind the different ages are two distinct legal concepts: the "age of majority" and the "age of license."

"Age of majority" is the age at which a parent’s legal control over, and responsibility for, his child ends. It’s so-named because — as the online encyclopedia Wikipedia puts it — "There are some things in life (such as death) over which no person has any lawful control. So one assumes ‘majority control’ over one’s life at the age in question, instead of ‘full’ control…"

In the United States, the age of majority, except for purposes of federal law, is set by the states. In Oregon, it is 18, although legal emancipation by the court, which here can take place at age 16, automatically confers the status of majority.

The common-law age of majority, says McFarlane, was 21 going as far back as the 13th century. But many states, including Oregon, statutorily changed it to 18 in response to the drafting of 18-year-olds to fight in Vietnam. "If they are considered old enough to be drafted to fight and die for their country, they should be considered old enough to vote,’" McFarlane says of the argument of the time.

The other legal concept, "age of license," is the age at which government gives someone legal permission to do something, such as work, drive, vote and drink. It can be lower than the age of majority (in Oregon, nine-year-olds can pick berries or beans) or higher (21 has been the legal drinking age in all states since the federal government tied the availability of federal highway money to a drinking age of 21.)

Harris says that the ages Oregon has set for various rights is the result of social policies, history, arbitrary decision making and politics.

"Some of the inconsistencies — i.e., the one about treatment for STDs at any age without parental consent — are explainable as recognizing that kids may be very reluctant, to put it mildly, to reveal their need for this to parents," says Harris.

"Some of the inconsistencies are just that you need an age," she continues. "Any age. I don’t know why we permit kids to get learners’ permits at 15 and licenses at 16. If the availability of federal highway money was tied to 21 for driving — as it is with drinking — all of the states probably would raise the age for driving to 21.

"And the rule for child labor (which allows children as young as nine to be employed as produce pickers in Oregon under certain conditions) most likely comes from an earlier time, when we were tied to an agricultural economy. It’s a historical relic."

Until the turn of the 20th century, children were allowed to work all kinds of jobs, including in mines and factories. But then laws were passed that, among other things, required mandatory school attendance and restricted child labor.

"The notion was that children would be completely protected by adults and wouldn’t need rights of their own," says McFarlane of this reform legislation.

Then, in 1967, in In re Gault et. al., (387 U.S. 1), the U.S. Supreme Court held that juveniles charged with crimes in juvenile court are entitled to many of the same due process trial rights that the 14th Amendment guarantees to adults. These include the right to confront witnesses, the right against self-incrimination and the right to counsel.

McFarlane notes that Gault marked a turning point in how adolescents were viewed by the law.

"From that point on, lots of states passed laws relating to medical care, abortion and — quite a bit later — mental health care," she says. "Kids were given rights and became involved in making decisions on their own."

But Harris says the current state of the law doesn’t tell the whole story.

"Lowering the age of majority in the ’70s to 18 definitely increased thinking of kids as autonomous and having the right to make their own decisions," she says. "But in some way, teens are treated less as adults now than they were 100 years ago. Now, we think 18 is young to be on your own, but it used to be that many kids quit school after 8th grade and started out on their own. In the economic realm, at least, childhood definitely is being prolonged."

Adolescent Brain Research
The statutory ages for the acquisition of juvenile rights and responsibilities were set long before research into adolescent brain development.

Brain research with modern neuroimaging techniques that allow a living brain to be studied without damaging it began in the early 1990s with babies and toddlers.

That research led to the conclusion — which some experts said was erroneous — that the only critical stage in brain development is pre-birth to age three.

"If your child was not exposed to the right things in the first three years, you were terribly out of luck," says McFarlane. "Politicians really bought into it. They invested money in the birth-to-age- three population and stopped investing in teens."

But, as those babies and toddlers began to grow up and researchers continued to study their brains, they learned that there is another significant stage of brain development.

McFarlane says this research showed that the prefrontal cortex — the part of the brain that controls foresight, planning and judgment — isn’t fully developed in females until the ages of 22 to 23 and in males until 25 to 27.

"Some people say even later," says McFarlane, who says the difference between males and females is the result of sexual hormones.

Until that development is complete, says McFarlane, teenagers are controlled by another part of their brains, the amygdalae, which are two small brain structures that produce emotion.

"We have kids who are exercising very poor judgment," McFarlane continues. "To a kid, controlled by his amygdalae, what friends think is very important. That controls over judgment. Why does one kid have problems with judgment and not another? Some of it is luck and some of it is situational: not being exposed to poor choices. And some kids do have more judgmental ability."

McFarlane has used brain development research both in juvenile delinquency cases and to train those who work with children who are "aging out" of foster care at 18.

"When you’re 18, you’re not necessarily an adult, brain-wise," she says. "Foster kids are the least able to care for themselves at 18. Kids who grow up in foster care are educationally delayed, and their (life) experiences may have caused developmental delays. Other kids don’t leave home at 18. It’s unfair, when we’ve taken away all of their (foster kids’) family ties, to say, ‘Now you’re on your own.’ A system that’s set up to set those kids free at 18 is pretty flawed."

McFarlane says that even if the foster care system has not adjusted to the reality of brain development, the U.S. military has.

"For years, letting kids who messed up into the Army was seen as a solution," she says. "Now the military doesn’t want them. There’s a serious war, and they (juveniles) don’t have the judgment. The military has discovered the same thing as brain researchers: they don’t want to put a gun in the hand of someone with an undeveloped prefrontal cortex.

"I think how we’ve set the age of majority for different things is really political," McFarlane concludes. "If we consulted social scientists, we wouldn’t be setting the ages we are."

Measure 11: Juvenile Court or Adult Court?
One of the most political of those decisions, in McFarlane’s view, was Measure 11.

Prior to 1994, a juvenile under 18 who allegedly engaged in criminal behavior in Oregon could be handled informally — i.e., by issuing him a warning or referring him to an appropriate community agency — or formally, via the filing of a delinquency petition in juvenile court.

Those whose cases were handled in juvenile court had the due process rights that were guaranteed by the Gault decision, which did not include the right to bail or trial by jury.

If the juvenile court judge or referee found the criminal charges in the petition to have been proved, the juvenile could be put on probation or sentenced to a juvenile correctional facility.

In some cases, the juvenile could be sent to adult court for trial, but only after the juvenile court judge or referee had found that to be the proper venue for that particular juvenile and crime.

Then, in 1994, Oregon voters approved Measure 11 by the overwhelming vote of 788,695 to 412,816.

The measure, which was sponsored by Crime Victims United and then-state Rep. Kevin Mannix, set mandatory minimum sentences for adults convicted of certain serious crimes. It also requires all juveniles 15 and over who are charged with those crimes automatically to be tried and sentenced as adults.

"Why does Oregon have this law?" the Juvenile Services Division of Multnomah County’s Department of Community Justice posted on its website after the measure was adopted. "Many people in Oregon voted to make Measure 11 a law because: THEY ARE tired of crime (and) tired of ANYONE (including juveniles) getting away with crime. THEY WANT TO feel safe; be safe from violent crimes (and) put in prison ANYONE (including juveniles) who commit certain crimes."

The division’s message — with its attention-attracting capitalization and boldface — was directed to readers who are "almost 15, 15 or older."

According to McFarlane, Measure 11 passed just as brain research on teenagers was beginning.

"Certainly there was discussion (about such research) among those who work with and know teens," she says, "but Measure 11 passed overwhelmingly."

Yamhill County Deputy District Attorney Debra Markham, who handles both delinquency cases in juvenile court and Measure 11 prosecutions of juveniles in adult court, says that the measure was the public’s response to seeing juveniles committing more and more serious crimes.

"In the ’70s and ’80s, we began to see kids involved in fairly organized gang activity," says Markham. "People were being shot."

Still, Markham says, even jurors who statistically are likely to have voted for Measure 11 aren’t necessarily comfortable with it when it has a human face.

"My experience with Measure 11, if trying a juvenile in adult court, is that jurors come in and say, ‘Why is this boy being charged as an adult?’ And I say, ‘Because he killed someone.’"

Mike Dugan, who has been district attorney in Deschutes County for over 20 years, says, "I took a position on Measure 11 in ’94. I was opposed to it because of its exorbitant cost. I have changed my position as it relates to adults; I think it’s been helpful in reducing violent crime generally."

But, he says, his office takes a "very narrow" approach to which juveniles and offenses it pursues under Measure 11. "Fifteen, 16, 17-year-olds: many of them are pretty young, both age-wise and maturity-wise," he says. "And many offenses are not appropriate to send to a state training school for the length of time required under Measure 11."

Klamath County District Attorney Ed Caleb, who says he believes the measure passed because of the amount of gang activity at that time, concurs.

"It could have been a disaster," says Caleb. "It hasn’t been, because most DAs take it very, very seriously. I doubt if we’ve done a dozen Measure 11 juvenile cases (since 1994)… mostly serious sex offenders or somebody involved in gang activity. Most of the DAs I know are not comfortable sending juveniles to a state training facility under Measure 11."

Yamhill deputy D.A. Markham is most familiar with the public’s response to the law’s pursuit of juveniles because of a case that didn’t involve Measure 11 or adult court: McMinnville’s "butt swatting" case, which she prosecuted.

In that case, two 13-year-old boys — too young for Measure 11 — initially faced petitions in juvenile court alleging that they had committed felony sexual abuse in the first degree by swatting female classmates’ bottoms. They also were accused of touching two girls on their breasts.

If the charges had been proven, the boys could have had a lifelong obligation to register as sex offenders and could have been sentenced to 10 years in a juvenile correctional facility.

The charges, which later were reduced to misdemeanor sexual abuse in the third degree, and related charges of harassment, ultimately were dismissed by the court after the girls and their families signed acknowledgements of satisfaction and Markham joined the boys’ attorneys in a motion to dismiss.

But before that happened, the case drew national attention, and the Oregonian editorialized against the Yamhill County District Attorney’s Office’s decision to pursue the case.

Markham, who declined to comment on the case, acknowledges that adolescents’ ability to control or even understand their behavior may be different from that of adults.

"Teens, by their very nature, are volatile," she says. "They don’t think things through. You can’t necessarily attribute to them the same level of understanding and thoughtfulness as you would to a 30-year-old. Adolescence is a time of testing limits. They want to drive too fast, drink too much; they’re exploring their sexuality. All of these things are a cauldron that brings them into conflict with the law."

Markham says that when crimes committed by juveniles are pursued in juvenile court, the law mandates that the court consider the best interest of the child and the least-restrictive dispositional alternative that is consistent with public safety.

To determine what that is, she says, her office looks at several things.

"In any case, we start by looking at the behavior," she says. "In some instances, it’s very clearly criminal; in others, it may not be. Sex crimes, particularly given the way the law is written (with regard to intent), can be one of those. We’ve all met 12-year-olds who were very different in terms of their level of maturity. You can have an 11-year-old who is far more savvy and delinquent than some 12-, 13-year-olds."

Markham says that her office also consults with experts.

"For example, with sex offenses, we try to have a psychological/sexual evaluation to determine if the juvenile is amenable to treatment and treatment in the community," she says. "This is a problematic situation because when charges are pending, there’s some concern, on the part of the defense, about having the youth talk about the offense. They may not have reached a decision about whether to try the case or admit (the allegations). If they give you an evaluation, it’s probably favorable to them. If they don’t, it’s probably not favorable. In most cases, we do see evaluations and use them in decision making."

McMinnville lawyer Mark Lawrence, who represented one of the 13-year-olds in the "butt-swatting" case, says research on adolescent brain development played a role in it.

For example, he says, the juvenile court judge suppressed statements that both boys had made to a police officer after Portland forensic neuropsychologist Robert Stanulis testified.

"The officer didn’t take the time to explain Miranda rights," Lawrence says. "At that age, they have no idea what they mean. The officer has to ask follow-up questions; i.e., ‘What does the right to a lawyer mean?’ When they ask those questions, kids answer all kinds of goofy things."

Lawrence says that had the case gone to hearing, Stanulis also would have testified about how the boys’ incomplete brain development affected their ability to form criminal intent.

"At that age, your hormones are high; your judgment and ability to control yourself are low," says Lawrence, who was a deputy DA in Yamhill County under former DA John Collins, now the juvenile court judge who heard the "butt swatting" case. "Kids at this age are developing sexual desires. Last year, young ladies grossed them out; this year, they’re kind of interesting. But they don’t know how to express feelings, so they kick and poke each other."

Lawrence, who says that his juvenile caseload has jumped since the case was publicized, says "there’s a vast difference" in how different district attorneys’ offices handle such juvenile conduct.

"It even differs from one deputy DA to another in the same county," he says. "They seem to be making decisions based on their own predilections and experiences. The DAs are trying to make good decisions, are not being malicious, but the decisions are not thought out. The problem is prosecutors who look at behavior in a vacuum. You have to look at it from the kid’s perspective."

Lawrence also complains that the school his client and the other 13-year-old attended never went through a non-criminal process before it involved the police and the district attorney’s office.

"They never told the boys not to do that," he says. "The school’s perspective was that would seem weak. That makes no sense."

Child Custody
"M" Boldt was nine years old when his noncustodial mother and custodial father began their third custodial dispute, this one over the issue of circumcising "M" as part of his purported conversion to Judaism.

He was 12 years old when the Oregon Supreme Court ruled, in January 2008, that the trial court had erred in failing to determine whether he wanted to be circumcised, as his father contended, or did not, as his mother alleged.

In its ruling, the court concluded that the decision to circumcise a male child generally falls within a custodial parent’s authority.

But, it said, in this case, "M’s" mother had maintained that "M" was opposed to being circumcised.

"In our view, at age 12, M’s attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody," the court held. "That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father’s capability to properly care for M."

"M’s" father, who represented himself, had argued that although his son wanted the procedure, "M’s" wishes were "legally irrelevant."

"If the legislature had wanted a male child to have a say in whether he is circumcised," the court quoted the father as arguing, "it could have adopted a statute to that effect, as it has done in other statutes such as…giving minors the right to consent to treatment for venereal disease without parental consent."

"M’s" mother had argued that a custodial parent does not have the absolute right to have elective, non-medically necessary surgery performed on a child, asserting that "…there is no more important decision to make for a male child than to require that the child undergo permanent modification of his body..." Boldt and Boldt, 344 Or 1, 176 P3d 388 (2008)

Willamette University College of Law Prof. Kathy Graham, who teaches domestic relations, says she doesn’t see Boldt as giving a 12-year-old the right to make a medical decision. (Under Oregon law, the age at which juveniles can consent to medical treatment without parental consent is 15.)

"The court was looking at it more from the prospective of whether he (‘M’) is really converting to Judaism," says Graham. "They’re looking to see what the child’s beliefs are, whether he’s following the beliefs of Judaism."

Prof. Harris agrees that the central issue was child custody, not the medical decision itself.

"They didn’t say the kid had the right to decide," she says. "Some judges say the last thing they want, in custody cases, is to hear from the kids; they don’t think kids should be put in that position. So Boldt is inconsistent with what some judges think."

According to Multnomah County Family Court Judge Susan Svetkey, "There’s no statute or case law that states an age at which a child gets to decide — or that requires the court to take the child’s preference into account — with regard to custody matters."

In addition, Svetkey points out that while Oregon law allows the court to appoint counsel for children in a child-custody dispute, "There’s nothing anywhere that defines what that lawyer can do or how to fulfill his job."

"There’s an enormous dispute, among practitioners and law professors, as to what that lawyer’s role is," says Svetkey, who also runs Multnomah County’s pro bono Juvenile Representation Program. "Should it be the child’s best interest, or client-directed representation? There are lots of model rules, but none have been adopted in Oregon. So if the lawyer advocates the child’s preference, the older the child is, the more weight the court might give that preference, but it’s not absolute. In many cases, what the child wants is not necessarily a good choice, i.e., ‘I want to live with dad because he has no rules and lets me drink beer.’"

Svetkey notes that while she believes "The child’s preference is something the court can and should take into account, it’s not one of the statutory criterion for deciding custody."

"In many counties in this state," she says, "judges don’t think children should have lawyers."

Sex, Birth Control, Abortion, Marriage
Brittany, the 14-year-old with whom this article began, isn’t entitled to have a lawyer — or anyone else — help her make the tough decisions in her life.

Even if her boyfriend wasn’t in jail, she can’t marry him in Oregon — even with her parents’ consent — until she is 17. (In Massachusetts, girls as young as 12 can marry with parental or judicial consent; in Puerto Rico, the age is 21.)

But if Brittany had decided to have her baby, she could have made decisions for its medical care (except to the extent that they conflict with Oregon law barring faith healing as a defense to certain crimes). She also could have agreed to the child’s adoption.

"If a teenager is a parent, she can make medical decisions for her child, even if she isn’t old enough to make the same decision for herself," says Dr. Ron Marcum, corporate compliance officer for Oregon Health & Science University. "It doesn’t happen very often, but it does happen."

Harris says that "The rule about a child having the right to make decisions regarding his/her child, regardless of age, is practical."

"You don’t want to be tracking down grandparents to get consent to medical treatment," she says. "And would you really want a world where the teen mom wants to give up the baby for adoption and her parent can thwart it? Forcing parenthood on anyone is a bad idea, I think."

Had Brittany kept her baby, she wouldn’t have been able to get a credit card at Babies ’R Us: Oregon follows the common-law principle that an unemancipated minor lacks the capacity to enter into an enforceable contract, and the minimum age for emancipation here is 16.

But she could have, if she could afford it, contracted for housing and utilities under another Oregon law that allows unemancipated minors who also are custodial parents to enter into binding contracts for these necessities.

If she couldn’t afford housing, she would have needed to ensure that she and her baby were off the street at night. Oregon’s curfew law bars anyone under 18 from being in a public place between midnight and 4 a.m., unless a statutory exception applies, and there is no statutory exception for juveniles who have exercised bad judgment, regardless of what causes them to do so.

"Teens experience emotions very intensely, and they are more important to them," says the Juvenile Rights Project’s McFarlane, who has been working with, and advocating for, juveniles for 30 years. "You can say to them, ‘The likelihood is you won’t be going with this boy in 10 years.’ But they don’t have the ability to see that. What they do have are big, strong amygdalae telling them, ‘This is it, no one else has ever had this experience.’ Then they’ll come back in their 20s and say, ‘I was so wrong about that.’"

Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.

© 2008 Janine Robben

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