The Barton Child Law & Policy Clinic is concerned about HB 1059's impact on youthful offenders. As a child advocacy organization that focuses on abused and neglected children and children involved with the juvenile justice system, the Barton Clinic unequivocally supports efforts to punish adult sexual offenders who prey on children. We are concerned, however, that the proposed legislation unintentionally impacts children who offend. Child offenders are different than adult offenders in that they are amenable to treatment and are likely not to re-offend once treated. Research suggests that increased sentences for children may not deter child offenders or enhance public safety.¹

We are particularly concerned with children ages 13 years to 16 years who would be prosecuted under O.C.G.A. § 15-11-28, more commonly referred to as SB 440, for the crimes of rape, aggravated sodomy, aggravated child molestation, and aggravated sexual battery.

Children are Less Culpable than Adults

In the last fifteen years, science has learned a great deal about adolescent brain development through magnetic resonance imaging (MRI). Specifically, scientists have learned that the frontal lobes of the brain are developing and undergoing significant changes during adolescence. This is especially true for the pre-frontal cortex, the part of the brain responsible for executive functions. The latest research tells us that there are "neurological explanations for the difficulties adolescents have in cognitive functioning, in exercising mature judgment, in controlling impulses, in weighing the consequences of actions, in resisting the influences of peers, and in generally becoming more responsible."² In other words, adolescents are both emotionally immature and neurologically immature. Because their brains are still developing, adolescent children disregard long term consequences, engage in risk-taking, and in general can exhibit a lack of responsibility.³ Such behavior is not a true moral failing, rather it has neurological origins. This is why the law does not allow children to enter into contracts, vote, or even drive until they reach certain ages. Because their brains are still developing, children are less culpable than adults and should be treated differently by the justice system.

Recommendations:

(1) Exempt youthful offenders from the mandatory minimum 25 year sentences. Currently, children who commit violent sex crimes and are prosecuted as adults have a mandatory minimum 10 year sentence; (2) Allow first offender status for first time youthful offenders.

Children Respond to Treatment

Some sexual acts between children are not consensual. Children who sexually offend respond to treatment and can be rehabilitated. In fact, most children who are treated never re-offend. Children who sexually molest other children are troubled; some have been victims of abuse themselves. Some child sex offenders are not appropriately cared for by the adults who are responsible for them. All are in need of close supervision and treatment. Researchers tell us that less than 11% of youth who commit sex crimes and receive treatment will ever re-offend⁴, meaning that most child sex offenders, if given the chance, will go on to lead productive lives. In fact, the recidivism rate for adolescent sex offenders is significantly lower than the rate of recidivism for other delinquent behavior.⁵

Georgia's Juvenile Courts are best suited to adjudicate matters involving children committing sex crimes against other children. The focus of juvenile courts is rehabilitative; and juvenile court judges are specialists who through their professional affiliations and state and national judicial counsels, receive ongoing training in matters related to child development, culpability, and competency. Furthermore, juvenile courts are connected to treatment providers and mental health professionals with child-specific expertise. When children ages 13 years to 16 years are prosecuted as adults under SB 440, for the crimes of rape, aggravated sodomy, aggravated child molestation, and aggravated sexual battery, they are often prosecuted in superior court and sent to adult prisons where treatment and rehabilitation is not the focus.

Recommendation:

Exclude sex offenses from O.C.G.A. § 15-11-28, to provide for the handling of such cases by the juvenile court. The juvenile court would retain the authority to transfer the cases of the small minority of youth not amenable to treatment and rehabilitation to the superior court.

Conclusion

Research shows that adolescent children are less culpable than adults. Long prison sentences may have little deterrent effect on youthful offenders. Research also shows that adolescent sex offenders respond well to treatment and are at a very low risk of re-offending.

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