In re T.S.

2015 UT App 307

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF T.S.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

T.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20140656-CA
Filed December 31, 2015

Third District Juvenile Court, Salt Lake Department
The Honorable Christine S. Decker
No. 1086746

Monica Maio and Tasha M. Williams, Attorneys
for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE concurred. 1

CHRISTIANSEN, Judge:

¶1 T.S. appeals from the juvenile court’s denial of his motion
to dismiss a delinquency petition filed against him for rape of a
child. He contends that strict-liability crimes cannot

1. Judge John A. Pearce participated in this case as a member of
the Utah Court of Appeals. He became a member of the Utah
Supreme Court on December 17, 2015, before this decision
issued.
 In re T.S.

constitutionally be applied to individuals under the age of
eighteen because juveniles are too immature to have constructive
knowledge that their actions might be criminal. T.S. also
contends that application of the rape-of-a-child statute to the
facts of this case would produce an absurd result. See In re Z.C.,
2007 UT 54, 165 P.3d 1206. Because T.S. fails to demonstrate that
juveniles’ diminished capacity renders their adjudication under
a strict-liability statute unconstitutional, and because T.S. does
not challenge the juvenile court’s factual findings that
differentiate his case from In re Z.C., we affirm.

BACKGROUND

¶2 T.S. and the State stipulated to the facts recounted in this
paragraph. T.S., aged fifteen, and A.R., aged twelve, attended the
same school. They began dating. Shortly thereafter, A.R. sent a
text message to T.S. telling him that she liked short shorts. T.S.
replied that he too liked short shorts and invited A.R. to his
house. She accepted his invitation and walked to T.S.’s home.
After she arrived, the two began kissing. A.R. told T.S. that she
had had sex before, and the two engaged in mutually welcome
sexual intercourse.

¶3 We recite further facts as briefed by the parties. A.R. later
wrote about the encounter in her diary. A.R.’s father read her
diary and apparently reported the incident to the police. The
police interviewed A.R., who described T.S. as “sensitive in a
way that’s sweet” and stated that “we knew everything that was
going on.” The State filed a delinquency petition in juvenile
court against T.S. for rape of a child, a strict-liability offense
under Utah Code section 76-5-402.1 (the Statute). If committed
by an adult, rape of a child would be a first degree felony. See
Utah Code Ann. § 76-5-402.1(2) (LexisNexis 2012). As part of the
juvenile proceedings against T.S., A.R. and her mother
completed a victim impact statement; A.R.’s mother wrote that

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 In re T.S.

“[b]oth minors are equally accountable for their actions. Both
parties owe each other an apology[.]” After the petition was filed
against him, T.S. voluntarily enrolled in a sexual education class
that addressed healthy sexual boundaries.

¶4 T.S. filed a motion to dismiss the delinquency petition on
the basis that, as applied to him, the strict-liability nature of the
Statute violated his due process right to fundamental fairness
and worked an absurd result. The juvenile court denied the
motion. T.S. then entered an admission to unlawful sexual
intercourse with a minor, conditioned on a reservation of his
right to appeal the juvenile court’s denial of his motion to
dismiss. 2 After he entered the admission, T.S. was adjudicated as
delinquent and ordered to complete sixty hours of community
service with credit for the time he had spent in the sexual
education class.

ISSUES AND STANDARDS OF REVIEW

¶5 T.S. contends that the Statute is unconstitutional as
applied to him because it violates the guarantee of fundamental
fairness under the due process clause of the Fourteenth
Amendment to the United States Constitution. “Whether a
statutory scheme conforms with state and federal constitutional
provisions is a question of law.” State v. Lafferty, 2001 UT 19,
¶ 66, 20 P.3d 342. Similarly, a court’s decision to grant or deny a

2. Juvenile delinquency proceedings are not criminal in nature.
See infra ¶ 8. The equivalent conditional-plea procedure in a
Utah criminal proceeding is referred to as a Sery plea and allows
a defendant, with the consent of the prosecution, to enter a
conditional guilty plea while reserving the right to appeal a
court’s decision on a motion. See, e.g., State v. Rivera, 943 P.2d
1344, 1344–45 (Utah 1997).

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motion to dismiss presents a question of law. West Valley City v.
Parkinson, 2014 UT App 140, ¶ 5, 329 P.3d 833. We review a
juvenile court’s resolution of a question of law for correctness.
See In re A.M., 2009 UT App 118, ¶ 6, 208 P.3d 1058.

¶6 T.S. also contends that applying the Statute to him
produces an absurd result of the kind recognized by In re Z.C.,
2007 UT 54, 165 P.3d 1206. To the extent that this contention
challenges the juvenile court’s interpretation of statutes and case
law, we review that interpretation for correctness. 3

3. The State asserts that T.S.’s arguments do not address the
bases of the juvenile court’s decision to deny his motion to
dismiss and should therefore be rejected. See, e.g., State v.
Wimberly, 2013 UT App 160, ¶ 17, 305 P.3d 1072. In his motion to
dismiss, T.S. argued that the Statute was unconstitutional as
applied to him because it did not take into consideration the
effects of ongoing adolescent brain development. He also argued
that the application of the Statute would produce an absurd
result. The juvenile court rejected these arguments based on its
understanding of the law. T.S.’s argument on appeal raises the
same claims. Where we are asked to review the court’s
resolution of those claims for correctness rather than for an
abuse of discretion, T.S. may properly rely on the same
arguments on appeal that he raised below so long as they
address his burden of demonstrating legal error in the court’s
decision. See id. But if T.S. challenged a factual finding of the
court, he would have to show that the finding was clearly
erroneous (ordinarily, by marshaling the evidence in support of
the finding and explaining why the evidence was legally
insufficient). See Reeve & Assocs., Inc. v. Tanner, 2015 UT App 166,
¶ 34, 355 P.3d 232. As a matter of logic, such a task will usually
involve addressing the basis for the court’s findings. Id.

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 In re T.S.

ANALYSIS

I. Due Process

¶7 T.S. argues that applying the strict-liability rape-of-a-child
statute to him “violates his due process guarantee to
fundamental fairness because such application fails to take into
account the effects of his emerging adolescent brain
development on his ability to foresee and assume the risk of his
conduct; weigh the immediate benefit with the risk of harm;
resist peer pressure and control hormonal and other impulses;
self-regulate; and, perhaps most importantly, recognize the
behavior as criminally sanctionable.” More specifically, he
asserts that the application of the Statute “fails to allow for
individualized consideration and fails to account for age and
developmental limitations.”

¶8 “[D]ue process takes on an altered form in juvenile
courts because of the rehabilitative focus of the juvenile court
system.” In re K.M., 2007 UT 93, ¶ 23, 173 P.3d 1279. Juvenile
courts are designed to rehabilitate a juvenile’s behavior “rather
than merely to accuse, convict and punish.” In re Lindh, 359 P.2d
1058, 1059 (Utah 1961). “[T]he proceedings of the juvenile court
do not fall, nor are they intended to come, within what is termed
criminal procedure, nor are the acts therein mentioned, as
applied to children, crimes.” Mill v. Brown, 88 P. 609, 613 (Utah
1907). Accordingly, the United States Supreme Court has stated
that the same due process guarantees afforded to adults in
criminal cases are not necessarily afforded to juveniles in
delinquency adjudications. See In re Gault, 387 U.S. 1, 14 (1967). 4

4. “It is claimed that juveniles obtain benefits from the special
procedures applicable to them which more than offset the
disadvantages of denial of the substance of normal due process.”
In re Gault, 387 U.S. 1, 21 (1967). These benefits include avoiding
(continued…)

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“[T]he applicable due process standard in juvenile
proceedings . . . is fundamental fairness.” McKeiver v.
Pennsylvania, 403 U.S. 528, 543 (1971) (plurality opinion).

¶9 T.S.’s argument proceeds in three steps: (1) ongoing brain
development causes adolescents to evaluate situations and
consequences poorly; (2) as a result, the United States Supreme
Court has recognized that the United States Constitution
requires that juveniles not be treated as fully competent adults in
regards to the death penalty, life sentences without parole, or
understanding the waiver of their rights; and (3) applying a
strict-liability statute to a juvenile therefore runs afoul of the
Constitution because juveniles lack awareness that their actions
might be criminal.

¶10 T.S. quotes several sources that address behavioral
changes during adolescence due to the process of brain
development. See generally Sara B. Johnson, Robert W. Blum, &
Jay N. Giedd, Adolescent Maturity and the Brain: The Promise and
Pitfalls of Neuroscience Research in Adolescent Health Policy, 45 J.
Adolescent Health 3, 216–21, Sept. 2009, http://www.jahonline.
org/article/S1054-139X09002511/fulltext#sec3 (last visited Dec. 1,
2015); L.P. Spear, The Adolescent Brain and Age-Related Behavioral
Manifestations, 24 Neuroscience & Behavioral Reviews 4, 417–63,
June 2000; American Bar Association Juvenile Justice Center,
Kids Are Different: How Knowledge of Adolescent Development
Theory Can Aid Decision-Making in Court 21–23 (Lourdes M.
Rosado ed., 2000); National Juvenile Defender Center, Toward
Developmentally Appropriate Practice: A Juvenile Court Training
Curriculum 6 (2009); Elizabeth S. Scott & Laurence Steinberg,

(…continued)
classification as criminals, avoiding civil disability penalties, and
avoiding public scrutiny through the use of confidential
proceedings. Id. at 23–24.

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 In re T.S.

Rethinking Juvenile Justice (2010); Brief for the American
Psychological Association, et al., as Amici Curiae Supporting
Petitioners, Graham v. Florida, 560 U.S. 48 (2010) (Nos. 08-7412,
08-7621), 2009 WL 2236778. The changes identified by the
sources include increased thrill-seeking, increased risk-taking,
increased susceptibility to peer pressure, and ignoring future
consequences in favor of immediate gratification.

¶11 T.S. explains that, in light of such research, the United
States Supreme Court “has repeatedly acknowledged that
juveniles are different in constitutionally significant ways.” He
points us to several cases: Roper v. Simmons, 543 U.S. 551 (2005)
(holding that the imposition of the death penalty upon juvenile
offenders violates the Eighth Amendment to the United States
Constitution); Graham v. Florida, 560 U.S. 48 (2010) (holding that,
in non-homicide cases, juvenile offenders cannot be sentenced to
life in prison without the possibility of parole); Miller v. Alabama,
132 S. Ct. 2455 (2012) (holding that juvenile offenders cannot be
sentenced to life in prison without parole even in homicide
cases); and J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011) (holding
that the proper standard for evaluating Miranda claims in
juvenile cases is that of a reasonable child, not that of a
reasonable adult). T.S. explains that in each of these cases, the
ongoing development of adolescent brains was of central
importance to the Supreme Court’s analysis. T.S. also refers us to
two Utah cases that considered the impact of juvenile status: In
re K.M., 2007 UT 93, 173 P.3d 1279 (holding that, where a
juvenile court had failed to ensure that a juvenile understood the
nature and elements of the crime to which she was admitting,
the juvenile’s plea was not knowing and voluntary) and In re
D.V., 2011 UT App 241, 265 P.3d 803 (reversing a contempt
finding against a juvenile because the court order he was
accused of violating was, in light of his age, not sufficiently
specific to inform him of what he was required to do or what
consequences he faced for failing to obey).

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 In re T.S.

¶12 T.S. continues by asserting that “application of [the
Statute] to an accused who is also a child violates the due
process guarantee of fundamental fairness because such
application fails to account for the limitations of adolescent brain
development.” Specifically, he attacks the strict-liability aspect of
the Statute, arguing that “[b]ecause strict liability crimes allow
for punishment without a finding of criminal intent, their
application must be carefully circumscribed.” According to T.S.,
strict-liability statutes criminalize “conduct that a reasonable
person should know is subject to stringent public regulation”
and while “adults are presumed to have the capacity to assume
those risks,” that presumption cannot be applied to adolescents.
He suggests, without citation to authority, that “[w]ithout this
underlying concept of notice, [strict-liability] statutes make little
sense.” Because juveniles’ brains are still developing (causing
them to take risks, ignore consequences, and fall under the
influence of peer pressure), he urges us to hold that it is
fundamentally unfair to conclude that a juvenile “could foresee
and appreciate the risk of his [or her] conduct.”

¶13 The essence of T.S.’s argument is that the Statute is
unconstitutional, as applied to him, because a minor accused of
violating the Statute lacks notice, due to his immaturity, that
“mutually welcome, non-forcible sexual intercourse [is] a
criminal offense.” But T.S. does not cite any authority to the
effect that strict-liability statutes are unconstitutional when the
defendant would not have reasonably known that his or her
actions were prohibited. Indeed, proof of a culpable mental state
is not a due process requirement. See Powell v. Texas, 392 U.S.
514, 535 (1968) (noting that the United States Supreme Court
“has never articulated a general constitutional doctrine of mens
rea”).

¶14 The authorities relied upon by T.S. did not hold that
adjudication of a juvenile as delinquent is unconstitutional when
the juvenile was unaware that his or her behavior was

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proscribed. 5 Rather, these cases recognized the immaturity of
adolescent brains and held that, as a consequence, (1) juveniles
are less culpable than adults, (2) the most severe punishments
meted out to adults may amount to cruel and unusual
punishment if applied to juveniles, and (3) juveniles may require
greater procedural safeguards than adults. None of these
considerations circumscribe the legislature’s power to “declare
what constitutes an offense against society and to define the
elements that constitute such an offense.” See United States v.
Ransom, 942 F.2d 775, 776, 777 (10th Cir. 1991) (noting the “long
history of statutory rape as a recognized exception to the
requirement of criminal intent”). We conclude that T.S. has not
established that due process guarantees permit a juvenile to raise
ignorance of the law as a defense.

¶15 T.S. also argues that “[s]trict liability statutes purposefully
allow for no individualized determinations or considerations
and it is precisely this lock-step application of [the Statute] that is
so directly at odds with [the Supreme Court’s] reasoning in
Graham and Roper.” T.S. urges that “[t]he ‘one size fits all’
application of [the Statute] to T.S. fails to allow for
individualized consideration and fails to account for age and
developmental limitations.” But the Supreme Court considered
and rejected harsh and inflexible sentencing of juvenile offenders
in those cases, not the application of strict-liability statutes to
juveniles. A post-adjudication sentencing 6 is a fundamentally
different process than the culpability adjudication itself, and T.S.

5. We recognize that T.S. cited these cases primarily to establish
the proposition that courts have recognized constitutional
implications arising from the differences between adolescent and
adult brains.

6. We use the term “sentencing” here to include the juvenile
court’s order requiring T.S. to perform community service.

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does not explain how or why a sentencing proceeding conducted
in an unconstitutional manner can invalidate the statute
prohibiting specified actions in the first place. Nor does T.S.
explain how application of a strict-liability statute violates his
alleged right to individualized consideration in sentencing when
the juvenile court in fact considered the particular circumstances
of his case, including T.S.’s voluntary participation in sexual
education classes and A.R.’s victim impact statement, before
ordering him to perform community service.

¶16 T.S. has not shown that juveniles are entitled to notice that
their actions are illegal before they may be adjudicated
delinquent. It follows that the Statute is not unconstitutional for
failing to require special notice to juveniles due to their
immaturity before those minors can be held responsible for
strict-liability crimes.

II. Absurd-Result Doctrine

¶17 T.S. also contends that In re Z.C., 2007 UT 54, 165 P.3d
1206, “has application in determining whether [the Statute], as
applied to T.S., violates the fundamental fairness guarantee of
the due process clause of the Fourteenth Amendment.” There, a
thirteen-year-old girl and a twelve-year-old boy engaged in
mutually welcome sexual touching. In re Z.C., 2007 UT 54, ¶¶ 1,
17 & n.6. Delinquency petitions were filed against both children
for sexual abuse of a child. Id. ¶ 1. The Utah Supreme Court
vacated Z.C.’s adjudication, holding that the application of the
statute produced an “absurd result” that could not have been
intended by the legislature. Id. ¶ 25. The supreme court limited
its holding to “situations where no true victim or perpetrator can
be identified,” recognizing that “[e]ven among children under
the age of fourteen, there are unfortunately situations where an
older or more physically mature child abuses a younger or
smaller child.” Id. ¶ 24.

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 In re T.S.

¶18 T.S. urges us to apply In re Z.C.’s holding to his case. But
the juvenile court’s factual findings distinguish his case from In
re Z.C. The court found that here, unlike in In re Z.C., “[t]here is
an identifiable distinction between the perpetrator and the
victim.” The court also noted that In re Z.C. concerned juveniles
who were of similar ages. In contrast, the court here “[did] not
find the fifteen year old [T.S.] and the twelve year old [A.R.] to
be of similar ages.” T.S. does not challenge these findings on
appeal, 7 and we are therefore bound by them. Because the
juvenile court found that a distinct perpetrator and a distinct
victim existed in this case, In re Z.C. is not directly applicable.

¶19 T.S. also asks us to expand In re Z.C.’s holding to include
his case, arguing that the “cultural and legal context within
which [In re Z.C.] was issued has changed significantly in the last
eight years, thereby justifying a more expansive application of
the reasoning underlying the decision to the facts of this case.”

¶20 First, T.S. notes that “the United States Supreme Court
[has] issued several important decisions that changed the
contours of juvenile delinquency jurisprudence.” But, as we have
noted, those decisions concerned sentencing and procedural

7. T.S. does assert, “In this case, there is no clear victim and
perpetrator; rather, there are two ‘culpable participants.’ . . .
They attend the same junior high school, and there is an age gap
of just two years and five months between them.” T.S. does not
frame this as a challenge to the juvenile court’s contrary
findings. Even if he had, this challenge fails to carry his burden
of persuasion. See Reeve & Assocs., Inc. v. Tanner, 2015 UT App
166, ¶ 34, 355 P.3d 232 (“Logically, to show that a factual finding
is against the clear weight of the evidence [and thus clearly
erroneous], an appellant must candidly recount all of the
evidence supporting the finding and explain why it is
outweighed by the competing evidence.”).

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safeguards rather than the distinction between victims and
perpetrators. See supra ¶¶ 11, 15–16. They therefore do not
suggest expansion of the absurd-result doctrine applied by In re
Z.C.

¶21 Second, T.S. points to the rising use of social media, the
prevalent sharing of sexually explicit “selfies,” 8 and the
increasing ease of “sexual exploration between adolescent
peers.” But none of these degrade the line between cases “where
no true victim or perpetrator can be identified” and cases, like
T.S.’s, where the juvenile court has found that such a distinction
exists. See In re Z.C., 2007 UT 54, ¶ 24.

¶22 Third, T.S. contrasts In re Z.C.’s statement that sexual
abuse of a child “merits serious penalties because of the extreme
psychological harm that the perpetrator causes the victim” with
his assertion that, here, there was no clear victim or perpetrator.
See In re Z.C., 2007 UT 54, ¶ 18, 165 P.3d 1206. But, as we have
discussed, the juvenile court did find that there was a clear
victim and perpetrator in this case, and T.S. does not challenge
that finding on appeal. See supra ¶ 18. Moreover, we note that the
Utah Legislature has enacted a mechanism to temper those
penalties in certain cases. 9 See Utah Code Ann. § 77-2-9(2)
(LexisNexis 2012).

8. “The term ‘selfie’ is the name given to a self-portrait
photograph, often snapped at odd angles with smartphones, and
typically made to post on a social networking website (or sent in
a text message).” United States v. Doe, Criminal No. 1:12-cr-00128-
MR-DLH, 2013 WL 4212400, at *8 n.6 (W.D.N.C. Aug. 14, 2013)
(citation, brackets, and additional internal quotation marks
omitted).

9. “When a person under the age of 16 is alleged to have
committed any violation [of the sexual offenses chapter] the
(continued…)

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¶23 Fourth, T.S. expresses concern that, in thirty-eight states,
his adjudication might require him to register as a sex offender
“if he traveled to or lived” in them. One of these states is Texas,
where, according to the parties’ stipulation, T.S. intends to
continue his studies after graduating from high school. But T.S.
concedes that he would not be required to so register in Utah.
Because no state has yet required him to register as a sex
offender, this argument is not ripe. See Bodell Constr. Co. v.
Robbins, 2009 UT 52, ¶ 29, 215 P.3d 933 (explaining when an issue
is ripe for appeal). And even if his claim does eventually ripen,
the appropriate challenge should be to the particular statute
requiring T.S. to register in that other state rather than to the
validity of the Utah statute under which he was adjudicated.

¶24 Fifth, T.S. asserts that despite the considerable latitude
enjoyed by juvenile courts, “no amount of judicial lenity can
ameliorate the effects of a law that is flawed to begin with.”
However, this circular assertion presupposes that the Statute is
flawed—the very thing T.S. is attempting to demonstrate and
which we have rejected.

(…continued)
court may enter a diversion in the matter if the court enters on
the record its findings that: (a) the person did not use coercion or
force; (b) there is no more than two years’ difference between the
ages of the participants; and (c) it would be in the best interest of
the person to grant diversion.” Utah Code Ann. § 77-2-9(2)
(LexisNexis 2012). T.S. is not eligible for diversion due to the two
year and five month age gap between himself and A.R. While
the changes in our society may have degraded the line between
juveniles who are more than two years apart, it is the province of
the Utah Legislature, and not appellate courts, to evaluate
whether the policy decision to set that line should be revisited.

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¶25 T.S. has not convinced us that events since the issuance of
In re Z.C. require the expansion of that case’s holding to cases
where, as here, the juvenile court has determined that a distinct
perpetrator and a distinct victim exist.

CONCLUSION

¶26 We cannot conclude that application of the Statute to T.S.
violated his constitutional rights by failing to require the
factfinder to consider T.S.’s immaturity before adjudicating him
delinquent. Nor has T.S. shown that the juvenile court ignored
the individual circumstances of his case. Because T.S. does not
challenge the factual findings differentiating his case from In re
Z.C., he cannot show that his adjudication constituted an absurd
result as described by that case. Additionally, T.S. has not
presented a compelling rationale for expanding the holding of In
re Z.C. to fact patterns such as that present in his case. We
therefore conclude that T.S. has not demonstrated error in the
juvenile court’s denial of his motion to dismiss.

¶27 Affirmed.

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