News-Record.com

Attorneys for the boy, identified as R.L.C., contended that the adjudication was in error because, although the girl was a minor, so was the boy. And furthermore, he was less than three years older than she.

Their argument would have prevailed if the boy and girl, identified as O.P.M., had engaged only in vaginal sexual intercourse. Their age differential was not sufficient for him to be charged with statutory rape or some other sexual offense. But the case record states, "the two juveniles had sexual intercourse and engaged in two separate incidents of fellatio in or around July and August of 2003 in the back seat of O.P.M.'s mother's sport utility vehicle, which was parked in a bowling alley parking lot. O.P.M.'s parents were inside bowling at the time of the sexual activity."

Shame on O.P.M.'s parents. But it's the boy who landed in trouble. The oral sex, the court found, is a violation of the state's crime against nature law, which makes no references to age.

That indicates that, if R.L.C. and O.P.M. were adults, they would be equally liable to criminal charges -- although not in the juvenile justice system, of course.

But maybe not. More on that thought in a moment.

If age doesn't matter, it seems O.P.M. also might have been subject to delinquency charges. I don't take lightly the strong possibility that a 12-year-old girl could be coerced into sex by a 14-year-old boy, but this case presents the sexual relationship between the two as consensual.

At this point, maybe you're a bit puzzled. Does North Carolina really still enforce a crime against nature statute? Wasn't there a U.S. Supreme Court ruling a few years ago striking down that sort of law?

That issue was raised in this case. Writing for the majority, Justice Ed Brady noted that the U.S. Supreme Court decision in Lawrence v. Texas specifically states: "the present case does not involve minors."

It's a different matter when minors are involved, wrote Brady, going on to outline why the state has a legitimate interest in prohibiting this kind of sexual activity between children:

"Besides the goal of promoting proper notions of morality among our State's youth, the government's desire for a healthy young citizenry underscores the legitimacy of the government's interest in prohibiting the commission of crimes against nature by minors. Like vaginal intercourse, non-vaginal sexual activity carries with it the risk of sexually transmitted diseases. ... Moreover, many minors, especially those in their most formative years, are unable to make reasoned decisions based upon their limited life experience and education whether to engage in these sexual activities. Not only do these decisions physically affect and potentially endanger the minors, there may be psychological implications as well. We hold that preventing sexual conduct between minors furthers a legitimate government interest and application of the crime against nature law in cases such as the one sub judice is a reasonable means of promoting that legitimate interest."

I endorse that reasoning from a public policy perspective. From a legal standpoint, it smacks of judicial activism (from the conservative side of the bench) because the law itself makes no distinction by age -- so how can the court do so in upholding the law, the statement in Lawrence v. Texas notwithstanding?

In fact, Justice Mark Martin makes more or less that very point in a concurring opinion joined by Justice Bob Edmunds. They read nothing to do with age in the law and refuse to apply an age distinction to their opinion -- which doesn't change the fact that R.L.C. broke the law.

A dissenting opinion by Justice Patricia Timmons-Goodson was joined by Justice Robin Hudson. Timmons-Goodson seizes on the point I made at the top of this entry.

"The question before this Court is not whether we are offended or concerned by the notion that a twelve-year-old and a fourteen-year-old have engaged in sexual misconduct. Sexual activity by young people with 'limited life experience and education' is troubling," she wrote.

Nevertheless, the literal interpretation of the crime against nature statue is wrong in this case because it violates the intent of the General Assembly.

In all other laws referring to sexual activity between minors, an age differential of at least three years triggers enforcement. Here, as I noted above, sexual intercourse between the two broke no law while oral sex did. The "absurdity" of this result means that such an application of law could not have been intended, Timmons-Goodson concluded.

Extrapolating legislative intent is tricky. Certainly, the legislature did not intend to approve of sexual activity by 12-year-old girls and 14-year-old boys.

This is a sad case, and the court's divided decision with three different opinions is bound to create confusion.

One thing is clear: Parents shouldn't leave their 12-year-old daughter in the back seat of their SUV with a 14-year-old boy.