The fine legal line between teenage angels and monsters.

The fine legal line between teenage angels and monsters.

The fine legal line between teenage angels and monsters.

The law, lawyers, and the court.
June 7 2008 7:35 AM

The Age of Innocence?

The fine legal line between teenage angels and monsters.

FLDS teens and Omar Khadr. Click image to expand.
FLDS teens and Omar Khadr

Anyone who's ever spent a year or two being 15 knows that the question of when childhood ends and adulthood begins is a complicated one. At that age, one can veer between rational decision-making and delusions of fabulous self-importance 30 times each day. That's why our legal system tries—not always successfully—to draw a nuanced, fact-based line between childhood and adulthood. It's why the age of consent in some jurisdictions is 14, while in others it's 18, even though American teenagers everywhere really, really like sex.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

And that's why the comparison between the 465 youngsters seized from a Texas polygamist ranch in early April and the young Canadian man currently facing a military trial at Guantanamo Bay is so illuminating. In both cases, when it came to treating children like adults and adults like children, the government has been hopelessly confused. Considered side by side, the two cases reflect our troubling legal tendency to overprotect the teens we deem to be victims and overpunish those we consider dangerous or violent.

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The decision by Texas Child Protective Services to pluck hundreds of youngsters from the compound of the Yearning for Zion Ranch this spring was rooted in a fatally romantic vision of childhood. In April, the state initiated a sweeping raid based on what may have been a fraudulent sex-abuse hotline call, as well as the state's allegation that five young girls at the ranch had been sexually abused by older men. Late last month, two state appellate courts determined that the removal of hundreds of small children, including boys, toddlers, and married, consenting women, was unwarranted. While Child Protective Services had argued that these young people were all in immediate danger as a consequence of the polygamists' dangerous beliefs, the courts disagreed on both counts. Many of those taken into custody were not children at all—of the 31 girls initially removed as underage mothers, 15 were, in fact, adults, and one was 27—nor were they in any imminent danger of harm. Many were old enough to make their own legal decisions. Furthermore, even if those decisions were the product of ongoing religious brainwashing, the appeals courts would not characterize the mere exposure of vulnerable young people to those ideas as abuse.

The Texas authorities mistakenly believed that each one they had grabbed on the
ranch was essentially a too-impressionable child. The Texas courts, on the other hand, credited those same young people with a broad capacity to make autonomous legal decisions. Teenagers who are sober, conservative, religious, and married don't quite match up with our streetwise notions of contemporary MTV adolescence. But, in the eyes of the Texas courts, that doesn't necessarily make them all victims of abuse.

Now consider Omar Khadr, a 21-year-old Canadian who has been held at Guantanamo Bay for six years while awaiting trial for crimes he is accused of committing in Afghanistan at age 15. Khadr faces a life sentence for allegedly throwing a grenade in a firefight, which resulted in the death of a U.S. soldier. Khadr's lawyers had sought to have the case against him dismissed because international law, including the Optional Protocol of the U.N. Convention on the Rights of the Child, affords special protections to soldiers under 18, treating them as victims to be rehabilitated rather than as seasoned killers. But last month, the military judge presiding over Khadr's tribunal denied that motion, and so Khadr will be tried as an adult, just as he's been incarcerated and interrogated as one. In the eyes of the Pentagon, a 15-year-old kid was a wholly autonomous adult and faces a life sentence for the choices he made.

The House is contemplating a Child Soldier Bill, which has already passed in the Senate. Like the U.N. Convention on the Rights of the Child, this legislation deems soldiers under 18 as fundamentally different than adults, and one provision would seek to prosecute anyone involved in the "recruitment or training" of juveniles under the age of 15. Nobody really disputes that Omar Khadr was radicalized by his father as early as age 11, when he was trotted around Afghanistan to meet with al-Qaida muckety-mucks, so how can it be that we think of Khadr both as the "victim" of terrorist recruitment and training and also a full-fledged, culpable adult? Like the Texas Child Protective Services system, the Child Soldier Bill assumes that children are enormously susceptible to brainwashing—so much so that their own decisions, even their choice to take up arms, are not free and autonomous. Like the Texas courts, the Pentagon assumes a level of maturity and free will that may not be there. And thus, like the youngsters at Yearning for Zion ranch, Khadr is a child under one legal model and an adult under a second.

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So, which one is it? Are we looking at innocent teenage victims or incorrigible adolescent demons? Are they grown-ups with slightly less facial hair? Or the lap dogs of adults who brainwash and manipulate them?

One way to reconcile the confused legal decisions about the children of the Texas polygamists and Omar Khadr is to recognize that the legal system operates in broad caricatures when it comes to children, manifesting a disproportionate fear of violent kids as wholly out of control, while treating all victims as though they are incapable of protecting themselves. Maybe all of this legal confusion is just a function of the dual nature of American teenagers, who always somehow seem too old and too young for their own good. Or maybe it just reflects our own uncertainty about whether to believe too broadly that teens are perfect and pure, or dangerous, unguided missiles.

A version of this article also appears in this week's issue of Newsweek.