FRANKFORT, Ky. (AP) — Kentucky's highest court considered on Thursday whether teen-age couples should be treated as criminals when they have sex and send nude photos to each other. If so, a third of America's teenagers could be exposed to felony sex-offense charges, the 15-year-old boy's lawyer said.
In this case, the legal fallout was one-sided after a mother spotted nude pictures on her seventh-grade daughter's phone, and discovered that she was having sex with her eighth-grade boyfriend at her house.
Both teen-agers could have been charged with the same offenses, but the full weight of Kentucky's law landed on the boy, who pleaded guilty to two misdemeanors for having sex and exchanging the photos. Then, despite his plea, a judge designated him a sex offender, removed him from his home and sent him to a juvenile detention center.
Lawyers for the boy and the Commonwealth of Kentucky argued for nearly an hour before the state Supreme Court over whether this kind of voluntary sexual conduct between children should be criminalized at all.
"They had no idea they could be committing crimes," said assistant public advocate John Wampler, who represents the boy.
Laws in Kentucky and many other states establish that no one under 16 can legally consent to sex. This boy was 15 and his girlfriend was 13 when they twice had sex after dating for more than a year.
The Legislature did not intend to say that a 15-year-old lacks the maturity to consent to sex with an adult, but then hold him criminally liable for the same behavior with a fellow juvenile, Wampler argued.
State Assistant Attorney General Gregory Fuchs countered that the boy initiated acts that "fit within the parameters of the crime," and that if the defense argument holds sway, sexual activity between a 15-year-old and a 5-year-old could not be criminally prosecuted.
Wampler said the boy's due-process and equal-protection rights were violated. A better solution, he suggested in a brief, would be to refer both boyfriend and girlfriend to counseling and order them to take classes on sexual boundaries.
Fuchs countered that the boy gave up the right to challenge the constitutionality of his conviction by pleading guilty, and that limiting the punishment to the boy was justified because he initiated the acts.
"There was only one victim in this case," Fuchs said in a brief, "and it is just as illegal for appellant as a 15-year-old to possess that child pornography as it would be if he was 51 years old."
The boy was already on probation for indecent exposure when he got in trouble with his girlfriend's mother. In that case, he had knocked on a neighbor's door dressed only in a towel and removed it to expose himself to the neighbor.
The justices interjected with a series of questions as the lawyers made their arguments. Justice Michelle M. Keller noted that sexual predators aren't limited to adults.
"I don't think it's fair to say that we're only interested in protecting juveniles from predators who are adults," she said.
The state's high court is expected to issue a ruling within a few months.