Alex Cabarga was seven years old when Luis Johnson began to sexually abuse him. By the time he was nine years old, Cabarga's mother grew tired of her parental responsibilities and gave Johnson custody of her son. In addition to physically and sexually abusing Cabarga, Johnson began to make and sell pornographic films featuring Cabarga. If he tried to refuse Johnson's advances, he was starved and beaten. This abuse continued for nearly ten years. When Cabarga was 17 years old, Johnson decided to kidnap a girl who would be able to carry his child and allow him to continue the cycle of abuse. To achieve this goal, Cabarga and Johnson kidnapped two-year-old Tara Burke. For approximately ten months, Burke was sexually and physically abused by Johnson and Cabarga. For instance, Johnson took pornographic pictures of Burke and taped Cabarga having sex with her.
Subsequently, Cabarga was arrested and charged as an adult in criminal court for the rape, kidnapping and sodomy of Burke. He was convicted and sentenced to 208 years in prison. The sentence was later reduced to 25 years at the prosecutor and judge's discretion. However, the law provided Cabarga with no right to a reduction of his sentence. Despite Johnson's role in coercing Cabarga's behavior, Cabarga spent the majority of his adult life in prison and continues to be labeled a sex offender. Even though Cabarga is clearly a victim of adult manipulation, many state laws do not recognize his victimization.
Currently, New York's statutory scheme fails to mitigate juveniles' culpability when they are manipulated by an adult. New York's conspiracy and criminal facilitation statutes provide increased penalties for adults who use juveniles under 16 years old in the commission of a crime. Therefore, the legislature clearly intended to punish and deter adults who use minors to commit crimes. However, under New York's current statutory scheme, minors who are manipulated into committing crimes are still considered as culpable as if there was no adult involvement. There is no discounting or accommodation of their victimization. Moreover, both statutory schemes only provide increased sentencing for adults who use juveniles under 16 years old in the commission of their crimes thus leaving adults who manipulate juveniles that are 16 and 17 years old unpunished.
This gap in New York penal law and in the laws of most other states is out of step with recent advances in neuroscience and US Supreme Court decisions. The Court has concluded that the differences in the way minors' brains are structured and function should mitigate juveniles' criminal culpability. Studies [PDF] have revealed that juveniles are developmentally immature, short-sighted in their decision making, have poor impulse control and are especially vulnerable to outside suggestions. In Roper v. Simmons, the Supreme Court relied on these findings about juveniles to determine that a minor cannot be subjected to the death penalty, regardless of how egregious his crime. Furthermore, in Graham v. Florida, the Court found that a minor who committed a non-homicidal crime cannot be given life in prison without the possibility of parole. Thus, the Supreme Court recognizes that juveniles and adults are fundamentally different and that criminal laws should treat them distinctly.
In order to fully protect juveniles, a statute should provide for the minor's diminished culpability in the commission of the crime. Under such a proposed criminal manipulation of a minor statute, the juvenile must first undergo a preliminary hearing in juvenile court. In the preliminary hearing, the judge determines based on legally sufficient evidence whether the juvenile was intentionally aided, commanded or encouraged by an adult in the commission of the crime. The court hears evidence from both the prosecutor and the accused adult's attorney, who will likely argue that the juvenile was not manipulated. The juvenile court then has a secondary hearing to determine the juvenile's own culpability by examining his level of maturity, psychiatric and mental capacities, past history, role in the offense, amenability to treatment and willingness to participate with the police. Using this determination of culpability, the juvenile court judge can sentence the juvenile to a maximum sentence of one-third of the minimum adult sentence of the crime, and a minimum sentence of one-sixth of the minimum adult sentence. Additionally, at least one year of the sentence must be completed in a rehabilitative center.
Overall, minors who are misled into the commission of a crime should be punished in juvenile court, should be punished less severely and should be entitled to specific rehabilitative programs as victims of manipulation and control. By adopting the proposed statute to punish minors according to their level of liability and to rehabilitate those minors who are also victimized in the commission of the crime, New York law would be better able to protect children.
Elizabeth Mastropolo is the Executive Notes and Comments Editor for the Journal of Civil Rights and Economic Development. Her experience includes legal externships with the Honorable Edward McCarty III, Tabat, Cohen, Blum and Yovino, St. John's Child Advocacy Clinic and the Pace Women's Justice Center.
Suggested citation: Elizabeth Mastropolo, Protecting Children From Adult Manipulation, JURIST - Dateline, Nov. 24, 2012, http://jurist.org/dateline/2012/11/elizabeth-mastropolo-juvenile-manipulation.php
This article was prepared for publication by Elizabeth Hand, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org