Extra Protections for Convicted Juveniles: U.S. and South Africa Agree – And Don’t
By: Jennifer Rae Taylor (visiting researcher at the Wits Justice Project, and staff attorney at the Equal Justice Initiative based in Alabama, USA)
At a first glance, two 2014 constitutional law decisions out of the United States and South Africa established the same rights for children convicted of sex crimes. However, at a closer look the two countries actually disagree on a fundamental and simple question that can either reinforce or nullify the rights of children: who is a child?
Eastern Cape boys – Photo by Kyla Herrmannsen
In South Africa, under section 50(2) of the Criminal Law Amendment Act, passed in 2007, anyone convicted of a sexual offense against a child or mentally disabled person must be included in the national sex offender registry. In the United States, all fifty states and the District of Columbia have some sex offender registration policy, and many use the nation’s federal statute – Sexual Offender Registration and Notification Act (SORNA) as a model.
On May 6, 2014, the South African Constitutional Court considered the case of a 14-year-old boy convicted of rape, sentenced to imprisonment, and added to the national sex offender registry. In J v. National Director of Public Prosecutions and Another  ZACC 13, the Court held that the registration law is unconstitutional when applied to convicted children because it severely infringes upon their constitutional right to have their best interests protected without providing an opportunity for them to counter the assumption that they are a continuing danger.
On December 29, 2014, the Supreme Court for the state of Pennsylvania considered challenges in six consolidated cases brought by children who were 14-17 years old when convicted of sex offenses. This court also concluded that the state’s law requiring registration of “juvenile sex offenders” unconstitutionally creates a dubious presumption of child dangerousness that can’t be rebutted.
Unlike Section 28 of the South African Constitution, which sets out specific rights for children including the right to be treated in age appropriate ways, the American Constitution doesn’t include heightened protections for children. But over the past decade, the United States Supreme Court has gradually established that the constitutional prohibition against cruel and unusual punishment requires treating children differently than adults when assigning criminal punishment. The Pennsylvania court relied on those decisions. As a result, children in South Africa and the U.S. now have a strikingly similar right to try to disprove continuing dangerousness before being required to register as sex offenders.
However, there is a striking difference between the two countries when it comes to the definition of who is a child. The definition of a child is relatively straightforward in South Africa, where the Children’s Courts hear criminal cases against everyone 10-17 years old, regardless of how serious the crime charged. All people within this age range are children, covered by the constitutional protections of Section 28 and the Constitutional Court’s decision in J v. National Director of Public Prosecutions.
US Constitution against an American flag
In America, a child is defined by behaviour and not just age. On the one hand, each state and the District of Columbia has a separate court system for children. Like the South African Children’s Courts, these “juvenile justice systems” are directed to prioritize rehabilitation over punishment and protect the child’s best interest. On the other hand, in the last three decades states have passed laws to circumvent the juvenile courts’ protections by authorizing children to be prosecuted “as adults.” In most jurisdictions, prosecutors can petition juvenile court judges to transfer children to adult court based on their age or the severity of the offense. In some cases transfer is automatic and in some states there is no minimum age for transfer.
The Pennsylvania Supreme Court is the first in the U.S. to hold that children’s constitutionally-distinct status requires extra protection from sex offender registration context. But even they acknowledge that the decision’s impact will be limited by the narrow definition of child.
We note that the category of “individual convicted of a sexually violent offense” generally refers to adults but will also include certain juveniles prosecuted in criminal court. Specified juveniles are automatically subject to criminal prosecution, rather than delinquency adjudication, if they were at least fifteen years old when they allegedly committed the relevant crimes of rape, involuntary deviate sexual intercourse, or aggravated indecent assault (or the related inchoate crimes) and the crime was committed with a deadly weapon or if they have previously been adjudicated delinquent of such offense, subject to transfer to juvenile court if in the public interest. Additionally, a juvenile who is at least fourteen years old at the time of the relevant conduct is subject to transfer from juvenile court if “there are reasonable grounds to believe that the public interest is served by the transfer of the case for criminal prosecution.” These provisions will exempt from the term “juvenile offender” some of the more dangerous youths, who will instead be subject to SORNA as individuals convicted of sexual violent offenses.
In fact, Human Rights Watch reports that every single jurisdiction in the United States requires juveniles convicted of sex offenses to register, if they were convicted in adult court. Even after this ruling, Pennsylvania will remain in that group.
The refusal to see some children as children shapes U.S. criminal justice, where adult prosecution of children is now common and widespread. The wildly popular American public radio podcast, Serial, spent twelve weeks broadcasting an investigation into whether Adnan Syed was wrongfully convicted of murder in the state of Maryland in 1999; though seventeen years old when arrested, Syed was prosecuted as an adult and sentenced to life imprisonment. The United States is in fact the only country on Earth that sentences children to life imprisonment without the possibility of release. Some were as young as 13 years old when charged and most are children of colour. American children were even eligible for the death penalty until 2005, when the Supreme Court ruled it unconstitutional to execute a juvenile. Even today, the U.S. continues to refuse to sign the UN International Convention on the Rights of the Child.
Of course, the tendency to see “dangerous” and “child” as opposites is not uniquely American. Few of us imagine children as people who commit acts of violence from whom society needs protection. And when children do those kinds of things – especially older children – it is tempting to declare that they are not truly children at all. In 2007, the South African Parliament tried to make minimum sentence statutes applicable to 16- and 17-year-olds convicted of certain crimes – effectively stripping them of their child status before age 18. In 2009, in Centre for Child Law v. Minister of Justice and Constitutional Development and Others  ZACC 18, the Constitutional Court rejected the law:
The Constitution draws the sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability. Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults. They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults. These considerations take acute effect when society imposes criminal responsibility and passes sentence on child offenders. Not only are children less physically and psychologically mature than adults: they are more vulnerable to influence and pressure from others. And, most vitally, they are generally more capable of rehabilitation than adults.
These are the premises on which the Constitution requires the courts and Parliament to differentiate child offenders from adults. We distinguish them because we recognize that children’s crimes may stem from immature judgment, from as yet unformed character, from youthful vulnerability to error, to impulse, and to influence. We recognize that exacting full moral accountability for a misdeed might be too harsh because they are not yet adults. Hence we afford children some leeway of hope and possibility.
This is not to say that children do not commit heinous crimes.
In South Africa, the nation’s constitutional vow to protect all children has been declared and defended, and there is much work to do before it is realized. In the United States, even the philosophical commitment to child protection remains an issue of semantics.
SA Constitutional Court artwork – Photo by Nooshin Erfani-Ghadimi