Proposal to increase felony charges for sex offenders could criminalize teen relationships

A proposal to increase the punishments for sexual offenders could put teenagers in prison. 

State law punishes sexual conduct with a minor who is at least 15 with a class 6 felony — the least serious felony type, which can potentially be moved down to a misdemeanor. House Bill 2169 seeks to rectify that by changing the classification to a class 4 felony, for which the standard penalty is 2.5 years in prison, and mandating one year of jail time if the offender was placed on probation. 

Arizona has a Romeo and Juliet law that provides a limited exception for cases in which a minor that is 15 or older had consensual sex with someone who is under the age of 19, or is still in high school and is no more than two years older than the victim. 

Advocates fear that HB2169 could preempt judicial discretion in complicated cases, leading to more kids in jail for having intimate relationships with their peers. Vicky Campo, a member of Arizonans for Rational Sex Offense Laws, a local group that advocates for people it sees as being wrongly relegated to the sex offender registry, spoke against the bill during a House Judiciary Committee meeting on Wednesday. 

“Even if the prosecutor, the judge and the jury all agree that probation is an appropriate sentence, this law mandates jail and would do nothing to improve public safety,” she said.

Chairman Quang Nguyen, who introduced the measure, disagreed, saying that the bill’s intent was to target predators who were able to plead their offenses down to a misdemeanor. Campo pointed out that the bill included no provisions that specified the offender must be an adult, which opened up the door for teens to be prosecuted under it. 

Retired Mesa police officer Nate Boulter, who now works with the Arizona Anti-Trafficking Network, assured the panel that law enforcement generally avoids cases where a minor had sex with another minor. The rule of thumb, he said, is usually to give offenders up to 22 years old a chance to serve probation or go to counseling. The problem the bill is trying to address, Boulter said, is the difficulty prosecutors face when dealing with conflicting statutes in cases where actual predators end up walking away with a slap on the wrist. 

While the law that Nguyen seeks to amend could potentially allow a felony charge to be pleaded down to a misdemeanor, a different state law classifies simply touching a juvenile’s breast in a sexual manner as a class 5 felony, which comes with harsher penalties. 

“The dilemma that county attorneys were having was the fact that this statute allows somebody to have sexual relations with a child — 15, 16, or 17-years-old — and it’s a class 6 felony, which has no mandatory jail time attached to it, and the vast majority of these cases kick off to misdemeanors,” Boulter said. 

Rep. Alexander Kolodin, R-Scottsdale, proposed that an amendment to shield those up to 22 years old might resolve the concerns of those who worry teenagers may be prosecuted. Kolodin submitted an amendment that would have expanded the Romeo and Juliet law to include teens who are no more than 3 years older than the victim. 

The committee did not consider his amendment. 

Katherine Gipson-McLean, a member of Arizona Attorneys for Criminal Justice, said that in her years as a public defender in Maricopa County, she’d never had a client plead their offense down to a misdemeanor. The bill, she said, was a solution in search of a problem. 

She added that Boulter’s promise that offenders 22 and under won’t be charged under the revised statute isn’t something she would predict, based on her past experience. 

“If actual sexual conduct has happened…I don’t see prosecutors, in Maricopa County anyway, discriminating against who gets charged with this offense,” she said. “If that has happened and the person is over 15, this is the offense folks are generally charged with.” 

The bill was passed out of the committee along party lines, with four Republicans voting to approve it and all three Democrats voting against it, citing concerns that it could be used against other minors and would tie the hands of judges who might be open to passing down more lenient sentences. 

Kolodin refused to vote in support or against it, saying that, while he supported the goal behind it, the bill needs work to earn his approval.