In my colleague’s post, What Does Justice Mean For a 14 Year Old Girl Who Kills Her New Born Son? (07/02/08) he references the surprisingly common case of a woman who was unaware of her pregnancy until going to an ER in pain.  It was her second child.  The Baytown girl charged with capital murder also claims that she was unaware of her pregnancy.  The veracity of her claim may prove crucial to her case and is quite plausible. 

One can safely assume the sex health education taught in Goose Creek (Baytown) ISD meets the state’s abstinence-only-until-marriage guidelines.  If the 14 year old’s knowledge of pregnancy and childbirth was limited to the information Texas teachers are allowed to provide adolescents, she knew little if anything at all.

An irony in this case is the fact that the class was being taught the week the girl gave birth.  Another is that three weeks later (4/23/08) the program is being questioned by the House Committee on Oversight and Government Reform.   Centers for Disease Control and Prevention (CDC) data are staggering:

About 1/3 of girls in the United States get pregnant before age 20.  In 2006, a total of 435,427 infants were born to mothers aged 15–19 years, a birth rate of 41.9 live births per 1,000 women in this age group.  More than 80% of these births were unintended…  Although pregnancy and birth rates among girls aged 15–19 years have declined 34% since 1991, birth rates increased for the first time in 2006 (from 40.5 per 1,000 women in this age group in 2005 to 41.9 in 2006).  

Although this article will not discuss at length concerns regarding sexually transmitted disease (STD), keep in mind that unprotected sex presents the potential for unwanted pregnancy and potentially life-threatening illness.  According to the CDC 2006 National Surveillance Data for Chlamydia, Gonorrhea, and Syphilis girls age 15-19 have the overwhelmingly highest rates of Chlamydia.  Less notorious than the other two STD studied or HIV, Chlamydia is extremely transmissible, often undiagnosed or misdiagnosed as a more benign yeast infection and causes painful Pelvic Inflammatory Disease which if untreated can lead to sterility or even death.

Yet school age children in Texas and 27 other states are essentially taught to just-say-no. Their state’s acceptance of federal funding for abstinence-only education disallows teachers and school administrators from offering any additional prevention information.  Seventeen states have said, “no thanks.” 

Abstinence-only education has a lengthy and complicated history.  Emphasis on abstinence-only education began during the Reagan era.  After a brief period of openness during the early 1990’s, the policy was signed into law as an attachment to the 1996 Personal Responsibility and Work Opportunities Act. The statute allocates funding only to states that promise their schools will teach students –including sexually inquisitive and active teens– to simply pledge abstinence.  Specifically, Title V, Section 510 states that “abstinence education” means an educational or motivational program which: 

1. has as its exclusive purpose teaching the social, psychological, and health gains to be realized by abstaining from sexual activity
2. teaches abstinence from sexual activity outside marriage as the expected standard for all school-age children
3. teaches that abstinence from sexual activity is the only certain way to avoid out-of wedlock pregnancy, sexually transmitted diseases, and other associated health problems
4. teaches that a mutually faithful monogamous relationship in the context of marriage is the expected standard of sexual activity
5. teaches that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects
6. teaches that bearing children out-of wedlock is likely to have harmful consequences for the child, the child’s parents, and society
7. teaches young people how to reject sexual advances and how alcohol and drug use increase vulnerability to sexual advances
8. teaches the importance of attaining self-sufficiency before engaging in sexual activity.

Educators, youth advocates, and family planning, public health, and HIV experts initially objected with no luck and no data at the time to convince the conservative Congress otherwise.  Despite independent studies suggesting oherwise, the Bush administration bolstered funding for the policy.  Furthermore, it has ignored data showing no significant behavioral changes with abstinence-only educated children versus those receiving comprehensive sex education.  A study commissioned by the government was quietly released over a year ago with little more than a press release.   

Comprehensive sex education incorporates abstinence into a more complete discussion of family planning and safer sex; and also can be tailored for age appropriate information.  Astinence only advocates often suggest that sex education should be provided by parents in the home.  If that is the case, why have you and I spent over a billion dollars telling school children to just say no?

Key critiques of abstinence-only-until-marriage programs include: 

> Abstinence only as a program goal is out of touch with current trends.  In fact, 95% of Americans have intercourse before marriage.

> Many abstinence-only programs withheld vital information such as accurate condom efficacy or dispensed blatant misinformation such as claims that 50% of gay youth have HIV and 10% of women commit suicide post-abortion.  Although many have corrected their curriculum, some persist in promoting false information. 

> Abstinence-only programs have failed to demonstrate behavioral changes based on extensive evaluation.

> Conversely, evaluation of comprehensive sexuality education programs (virtually all include abstinence education) show that many help youth delay sex and learn how to use condoms if/when they decide to have sex.

> Declines in adolescent sexual activity (often touted as proof that the abstinence-only program works) preceded widespread federal funding of abstinence-only education and are attributed to better use of contraceptives.  Sadly, data also show that those numbers are again on the rise.  

For those eager to suggest only certain liberal organizations intent on encouraging underage sex oppose the policy, think again.  The list of organizations publically opposed to the failed policy includes: the American Medical Association, Office of National AIDS Policy, Institute of Medicine, CDC, National Institutes of Health (NIH) and the American Academy of Pediatrics. 

It is time for policy makers to just say no to a failed policy that serves ideology, not youth or public health. The situation of an unwanted pregnancy in which school girls across America find themselves, IS shameful.  However, the shame is not on them for becoming pregnant.  The shame is on policy makers who have failed to speak truth to the complex topic of sex.  The shame is that ineffective abstinence only programs have received $1.5 billion tax dollars.  Conversely, zero tax dollars are spent on comprehensive curriculum which has been proven more effective by states that refused federal funds.  

For more information — including tips for discussing sex with your own children — check out the following websites:

Centers for Disease Control — http://cdc.gov

Advocates for Youth — http://www.advocatesforyouth.org

National Campaign to Prevent Teen Pregnancy — http://www.thenationalcampaign.org

The Healthy Teen Network — http://www.healthyteennetwork.org

Unfortunately, children are sometimes confronted with serious adult situations with lifelong consequences. On April 2, 2008, a fourteen year old Baytown girl encountered such a situation when she gave birth to a baby in the restroom of her junior high school (Houston Chronicle Story). According to the girl’s lawyer, she was unaware she was pregnant and also unaware she had given birth. (Girl’s Story) According to the Baytown police, she intentionally or knowingly killed the baby. On June 26th she was charged with capital murder, and if tried as an adult, could spend the rest of her life in prison without parole. Capital murder in Texas for an adult has two punishments: death or a life sentence without parole. In 2005, the Supreme Court ruled in Roper v. Simmons that the death penalty is unconstitutional for persons under the age of 18. This leaves life without parole as the only available punishment for capital murder committed by a person under the age of 18. The average life expectancy of an American today is 78 years (Source). If found guilty of capital murder, then this girl is expected to spend 64 years in prison.

What We Know From the Press

Its easy to get a distorted view of a situation like this and make assumptions based off of bits and pieces of information presented in the media. From what I’ve read, these seem to be the relevant facts:

The girl was at full term between 35 and 36 weeks. The baby boy was born 5 pounds 6 ounces and 18 inches long. It is uncertain whether or not the girl knew she was pregnant. The girl was in the nurses office for 2 and a half hours with a heating pad for complaints of cramps that morning. After leaving the nurse’s office she went to the restroom where she then gave birth. No adults knew the girl was pregnant, including her parents and the nurse. “The Medical Examiner’s Office determined that the baby boy died after being submerged in water with paper obstructing his airway and receiving blunt force trauma to his head and neck.” (Baytown Sun Article) After a 12 week investigation, the Baytown Police believe the evidence shows that this was done intentionally and knowingly.

Capital Murder in Texas

In Texas, murder is “intentionally or knowingly causing the death of an individual.” Tex. Penal Code §19.02(b)(1). To be capital murder, the crime must be committed with one of the circumstances listed under the capital murder statute. §19.03(a). In this case, the relevant circumstance was the age of the victim. It is capital murder if the victim is under six years old. § 19.03(a)(8). A prosecutor has discretion when deciding what charges to bring against the defendant. So for example, the prosecutor could charge the defendant with a lesser offense, even though all the elements of capital murder are present. However, in Harris County, the District Attorney’s office has a policy of charging defendants with the highest level crime for which all the elements are met. As of now, the prosecutor for this case is following that policy. (Houston Chronicle)

Adult or Juvenile: A Critical Decision

If this girl is not tried as an adult, but instead tried as a juvenile, then the maximum sentence she can receive is 40 years in prison. Tex. Family Code § 54.04(3)(a)(i). She would be sent to a TYC facility until the age of 19. (Overview of TYC) After turning 19, she would then be transferred to the adult prison system to finish the remaining 35 years of her sentence. If given the maximum 40 years, she would leave prison at the age of 54. In determining whether to waive original jurisdiction and transfer the girl to the adult criminal court, the Judge should look at several factors according to Tex. Family Code § 54.02(f):

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(2) the sophistication and maturity of the child;

(3) the record and previous history of the child; and

(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

“This is a very, very serious offense,” Thomas said to the girl. “But this is not permanent,” he said. “Your detention can be re-evaluated again in 10 days. So remember, we’ll be watching very closely to see if you behave appropriately.”(Houston Chronicle Article).

(e) At the conclusion of the hearing, the court shall order the child released from detention unless it finds that:

(1) he is likely to abscond or be removed from the jurisdiction of the court;
(2) suitable supervision, care, or protection for him is not being provided by a parent, guardian, custodian, or other person;
(3) he has no parent, guardian, custodian, or other person able to return him to the court when required;
(4) he may be dangerous to himself or may threaten the safety of the public if released; or
(5) he has previously been found to be a delinquent child or has previously been convicted
of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released.

Roper v. Simmons and the Moral Culpability of a 14 Year Old Girl

[T]he Thompson plurality stressed that“[t]he reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.”Id., at 835, 108 S.Ct. 2687. According to the plurality, the lesser culpability of offenders under 16 made the death penalty inappropriate as a form of retribution, while the low likelihood that offenders under 16 engaged in “the kind of cost-benefit analysis that attaches any weight to the possibility of execution” made the death penalty ineffective as a means of deterrence. Id., at 836-838, 108 S.Ct. 2687

[A]s any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.”

Capital murder in Texas is reserved for the most severe forms of murder. It carries with it the two most severe penalties in our criminal justice system. Although Roper was about the death penalty specifically, the Supreme Court makes important points about how we punish children under the age of 18. A 14 year old girl has a lot of life left to live. This makes a life sentence even that much more severe and that much more important to diligently apply in a fair and just way.

To be continued…

The events in Baytown at this junior high school is truly a tragedy. A newborn baby has been killed by what looks to be the actions of his young mother. The fate of that baby was in his mother’s hands that day, and now her fate is in our hands. As a society we must now decide what should be done. What eventually is done will reflect upon us as a society. The judicial process is really only just beginning for this girl and there is a long way left to go.

References:

Kent Greenawalt, Punishment 3 Encyclopedia of Crime and Justice 1282 (Joshua Dressler, Editor-in-Chief 2d ed. 2002, 1286-1287 in Joshua Dressler et al., Cases and Materials on Criminal Law 32, 36, 39 (3d ed.) 2003.

Michael S. Moore, The Moral Worth of Retribution Responsibility, Character, and the Emotions: New Essays in Moral Psychology (Ferdinand Shoeman, ed. 1987), 179-182 in Joshua Dressler et al., Cases and Materials on Criminal Law 32, 36, 39 (3d ed.) 2003.

It was reported in the Houston Chronicle in the article ACLU Sues State Juvenile Prison System, that the American Civil Liberties Union was suing the Texas Youth Commission due to allegations that the TYC subjected female inmates to mistreatment and abuse.

The American Civil Liberties Union filed a federal lawsuit against the Texas Youth Commission on Thursday, accusing it of subjecting its female offenders to unwarranted solitary confinement, routine strip searches and brutal physical force.

According to the brief, incarcerated girls are “frequently subjected to punitive solitary confinement in oppressively cold, concrete and cinderblock cells containing nothing more than a metal slab intended for use as a bed, and in some cases, a metal toilet.”

The girls, many of whom suffered sexual abuse in the past, are also regularly strip-searched, the lawsuit alleges. Those who resist the searches are subjected to extreme force, including being pepper sprayed in the face or being bound in leather straps, the ACLU argued in its 19-page brief.

Constitutional rights

The ACLU filed its class-action lawsuit in the U.S. District Court of the Western District of Texas on behalf of five girls currently incarcerated at the Ron Jackson State Juvenile facility in Brownwood.The ACLU accused the state’s correctional agency, which last year was rocked by a massive abuse scandal, of violating the constitutional rights of its minor clients, all of whom suffered sexual, physical or emotional abuse prior to incarceration.

Dismayed TYC officials charged the ACLU with failing to recognize the progressive reforms the agency’s new leadership has instituted as part of the shake up that followed last year’s scandal.

“It would be nice to work with ACLU as partners,” said TYC spokesman Jim Hurley, noting TYC has made some dramatic changes in the last year. “TYC is not the same TYC it was a year ago.”

Certain conditions common

But Hurley acknowledged that notwithstanding certain reforms, many of the conditions cited in the brief could be found on any given day at TYC units throughout the state.”If kids are on a work detail in the cafeteria, before they go back to their dorm, I’m sure they’re (strip) searched, to make sure there is no contraband, no weapons,” Hurley said. “These are things that are done across the board.”

He said he believes the lawsuit could have been avoided with a simple phone call from ACLU attorneys. “It’s likely there are things in there that are already on the board ready to be revamped,” he added.

Hurley said addressing the special needs of the 150 or so female offenders had become one of the biggest priorities of the agency’s new conservator, Richard Nedelkoff. He indicated that the agency might take a hard look at the practice of strip-searching females.

An attorney for the ACLU said that while the agency had taken some important steps, patience is running low.

“In the interest of our clients, we just felt we couldn’t wait any longer,” said Lisa Graybill, legal director of the Texas ACLU.

The agency became the subject of national news reports last year amid allegations that top officials turned a blind eye to evidence that youth had been or were being sexually and or physically abused by staff at a number of facilities around the state.

Source: Sandberg, Lisa. ACLU Sues State Juvenile Prison System. Houston Chronicle, June 12, 2008.

Girl Scout Troop 1500, led by social worker Julia Cuba, has a unique mission - the approximately 50 members make a monthly visits to Gatesville Women’s Prison, a chance for the scouts of Troop 1500 to see their moms. In the documentary of the same name by Ellen Spiro and Karen Bernstein, the filmmakers follow the girls through the difficult process of coping with growing up as their mothers progress through the penal system. According to the filmmakers, “An estimated 1.5 million children have incarcerated parents and 90 percent of female inmates are single parents. Their daughters are six times more likely to land in the juvenile justice system.”

The documentary appeared on the PBS series Independent Lens and is now available from Women Make Movies as part of a four-part collection on Women & Criminal Justice (.pdf).