This one may get me in a bit of trouble.
Like many Southern Californians (and perhaps others elsewhere), I have paid a modest amount of attention to what is generally known as the “Orange County Gang-Rape Case”. (For those unfamiliar with the case, visit the Orange County Weekly site for an exhaustive archive of articles). Bottom line: three teenage boys were accused of raping and sodomizing an unconscious 16 year-old girl; the key piece of evidence was a videotape shot by one of the boys. A mistrial was declared on Monday after the jury deadlocked on all of the counts, and despite the fact that most of the jurors favored the defense, the case will now be retried.
It’s hard to think of anything original to say about this sad story, except to give thanks that (as of yet) the videotape has not started making the rounds on the Internet. I do wish that the case had been tried in secret, so that none of the sordid details would have been leaked to the public. But since everyone in this part of the country is now familar with the case, I have a couple of quick thoughts. They center not on the facts of the case, but upon the age of the victim and of the accused.
My heart breaks for the very troubled young girl whose violation is at the center of this case. My sympathies are, first and foremost, with her. But though I imagine it will annoy a few of my readers to say this, I confess that I am not without sympathy for the young men who have been accused in this crime. They face over 50 years in prison if convicted on all counts. In my mind, no teenager should ever face such a lengthy sentence.
As a volunteer youth pastor, I work regularly with 16 and 17 year-old boys (the age of the trio accused in Orange County). The longer I work with them, the more I love them. And the longer I work with them, the more convinced I am of just how very, very young most adolescents in our society truly are. I have always hated the idea of trying juveniles as adults. I hated it when I was a teenager, because it seemed unfair to give kids the same consequences as grown-ups without giving them the same freedoms. (Frankly, my position on that hasn’t changed — freedom and responsibility ought always to be concomitant.) But now, I hate it even more because I have come to realize that in no meaningful sense can adolescents truly be considered adults. That’s a sweeping statement, but the more experience I have with teens, the more convinced I am of its essential truth. And as a result, (I’m bracing myself for the inevitable reaction), I think there is a world of difference between a sexual assault committed by a 17 year-old and one committed by a 30 year-old, and I think the legal system ought to acknowledge that distinction. (I am, naturally, clear on the obvious fact that from the standpoint of the victim’s pain, that distinction may not exist.)
Recent studies have shown that adolescent brains don’t work the way adult brains do:
The researchers found that when processing emotions, adults have greater activity in their frontal lobes than do teenagers. Adults also have lower activity in their amygdala than teenagers. In fact, as teenagers age into adulthood, the overall focus of brain activity seems to shift from the amygdala to the frontal lobes.
The frontal lobes of the brain have been implicated in behavioral inhibition, the ability to control emotions and impulses. The frontal lobes are also thought to be the place where decisions about right and wrong, as well as cause-effect relationships are processed. In contrast, the amygdala is part of the limbic system of the brain and is involved in instinctive “gut” reactions, including “fight or flight” responses. Lower activity in the frontal lobe could lead to poor control over behavior and emotions, while an overactive amygdala may be associated with high levels of emotional arousal and reactionary decision-making.
I’m no brain expert, but I’ve spent plenty of time with teenagers to become quite clear on the premise that virtually all teens have trouble with “behavioral inhibition”. Add in alcohol (something that everyone in the OC rape case admits was involved), and adolescents simply have a drastically diminished capacity to make appropriate moral judgments. To acknowledge this is not bleeding-heart liberalism, it’s sound common sense.
I am not for a moment suggesting that these boys in Orange County ought to go unpunished. The fact that they had a diminished capacity to make good decisions does not, of course, vitiate their responsibility to refrain from drugging and violating another human being. But a fair and just legal process would take the age of all parties involved into account, both in terms of establishing guilt and, far more importantly, in terms of providing a penalty. Knowing that those boys might go to prison for more than half a century would make it impossible for me to serve on their jury. From a moral standpoint, had I been on the OC jury, I would have felt compelled to vote for a not-guilty verdict (despite the evidence), merely because such a lengthy sentence cannot, in my mind, ever be appropriate for someone who is not mentally, intellectually, or emotionally fully adult. (Parenthetically, I’ve been excused from two jury panels because when asked, I twice said that I could not imagine convicting someone of a crime without knowing exactly what punishment they might face. Call me crazy, but if I can’t have a say in the penalty phase, I won’t even dream of participating in the guilt phase.)
I am not proposing letting the boys walk without consequences. I am proposing that if found guilty, the focus should be on restorative justice. What might that look like? Here’s how it generally works:
(Restorative justice revolves around conferences). A conference is a structured meeting between offenders, victims and both parties’ family and friends in which they deal with the consequences of the crime and decide how best to repair the harm. Neither a counseling nor a mediation process, conferencing is a straightforward problem-solving method that demonstrates how citizens can resolve their own problems when provided with a constructive forum to do so.
Conferences provide victims and others an opportunity to confront the offender, express their feelings, ask questions and have a say in the outcome. Offenders hear firsthand how their behavior has affected people. They may begin to repair the harm by apologizing, making amends and agreeing to financial restitution or personal or community service work. Conferences hold offenders accountable while providing them an opportunity to discard the “offender” label and be reintegrated into their community, school or workplace.
The victim in the OC rape case may well need the opportunity to confront those who raped her. The boys need the opportunity to see her as a human being, and recognize the harm they did. And the legal system needs to recognize that they are dealing with teenagers, complex creatures who are hardly innocent children, but who at the same time cannot be considered rational adults. Rape is a very, very serious crime — but even the most serious crimes must be seen differently when committed by the as of yet biologically and intellectually immature.