That is one of the primary questions asked when a prospective case of willing sexual contact between two minors is filed with the court, according to Milwaukee County Circuit Court Judge Mary E. Triggiano.
As the presiding judge in Children’s Court for the last year, Triggiano has not seen many cases involving juveniles who consensually agree to engage in sexual activity, as many incidents are dealt with by county prosecutors.
“Defining consensual begins at the district-attorney level and certainly if a case got into court, we take a look at those issues of whether or not it was,” said Triggiano. “But by that time, it’s not really considered consensual anymore.”
Wisconsin law states it is a felony for anyone under the age of 16 to engage in sexual contact or intercourse.
But when it comes to juveniles who jointly decide to “experiment” sexually, state prosecutors often choose to educate rather than incarcerate.
Assistant District Attorney Matthew J. Torbenson, who is a member of the Milwaukee County’s special division on juvenile sex offenses, said many cases end with a recommendation for counseling or treatment.
“From our perspective, we’re not looking to label kids as sex offenders for life, we just want to educate them on the boundaries of appropriate activity,” said Torbenson.
Though he could not estimate the number of “consensual” cases that come into the office, Torbenson indicated that there has been a slight decrease in the last year.
Case by Case
Catherine J. Dorl of the State Public Defender’s Office in Madison, said most juveniles are oblivious to the fact that their sexual encounters are illegal, but prosecutors and judges in Dane County are often accommodating in treatment of cases involving consensual juvenile sex.
“Generally, an age gap of less than three or four years is not going to get charged, unless one side is 18 or over,” said Dorl. “If it’s just purely a consensual thing, we don’t always see it, and that shows prosecutors are exercising discretion, which we think is great.”
She indicated most cases of underage sex that get charged are because of a significant age disparity or coercion.
Racine County District Attorney Michael E. Nieskes said along with age disparity, his office takes into account any circumstances which might indicate the act was nonconsensual.
Drugs, alcohol, a prior record and even peer pressure are potential influences in a teen’s choice to engage in sexual activity.
“We’ve had girls doing things as part of gang induction,” said Nieskes. “There is a broad penalty range for sexual contact or intercourse for persons under 13 and up to 16 and a need to adjust those dispositions.”
Nieskes recently charged an 18-year old in the county for having consensual intercourse with his 14-year old girlfriend. Justin Layman is facing four counts of second-degree sexual assault of a minor, which carries up to 120 years in prison.
Torbenson said non-violent cases that are prosecuted in Milwaukee generally end with parties receiving treatment or a deferred prosecution agreement if counseling is completed. In some instances, a conversation with parents is all that is needed.
“It really depends on the family situation, but even those which are recommended for treatment, we don’t usually see again,” said Torbenson.
Though the penalties are the same by statute, a distinction between two teens engaging in consensual sex and a 40-year-old man abusing a 13-year-old girl is needed, Dorl said.
In 2005 a 17-year-old in Georgia was convicted of having oral sex with his 15-year-old girlfriend. Genarlow Wilson was sentenced to 10 years in prison and served two years prior to his release last year.
“When does it start getting really offensive to us as a society to the point that we should charge somebody?” said Dorl. “That is a difficult question to get people to agree on an answer.”
Milwaukee County District Attorney John T. Chisholm said prosecutors have difficult decisions to make when dealing with consensual sex cases.
“Some mitigate more toward holding the parties responsible, while others are a very tough call,” said Chisholm. “We don’t want to send a message that it’s not serious, because there are long-range consequences.”
The argument of “teens being teens” is becoming increasingly difficult to make, according to Chisholm, when Milwaukee ranks in the top 10 nationally for teenage pregnancy.
According to a 2006 study conducted by the United Way of Greater Milwaukee, the city has the second highest percentage of total births to mothers under the age of 20 among the 50 largest U.S. cities and its teen pregnancy rate in 2004 was more than double the rate of the national average.
Dorl said consensual sex cases are often charged in conjunction with other crimes. Theft or drug possession can also be involved and the combination may paint an inaccurate portrait of the juvenile when it comes to his or her sexual indiscretion.
She indicated that district attorneys may offer probation for the theft and drug charges and ignore the sex charge, but if the juvenile cannot complete a treatment program, then they may still end up having to register as a sex offender.
“The penalty and potential label should match what you did,” said Dorl. “If you think consequences are needed, fine, but match them to what is happened.”
A primary goal of the SPD in Madison is to work with district attorneys to not have the juveniles register as sex offenders, unless warranted.
Torbenson said there is a separate juvenile sex registry in Milwaukee, which is only available for victims and law enforcement officials.
But Dorl was skeptical because a recent law change allows law enforcement to release the names of juvenile sex offenders if in the best interests of the public.
“Essentially, a local cop can determine whether a neighbor needs to know, so you may tell someone something one day, but that can change,” said Dorl. “In my opinion, the registry is so diluted that it’s hard to know who the people to really be afraid of are.”