Recently I appeared in a juvenile court to represent a child who had been probated on a sex abuse charge. The judge had revoked the child's probation and committed him to the Department of Juvenile Justice (DJJ) when his mother was unable to take him back into her home after he was released from a mental health facility. At the hearing on the motion to terminate commitment, the juvenile judge asked the DJJ community worker whether the child had been receiving sex offender treatment. There was considerable discussion of that subject before the judge denied the motion to terminate. My focus as the child's advocate expanded from whether his probation had been improperly revoked to whether he'd been properly designated a sex offender.

Following the hearing, I reviewed the child's records and learned that he'd never been represented by an attorney. The report ordered by the judge when the child admitted guilt without counsel, advised that his IQ was 56, and there had been no declaration by the judge that the child was a sex offender. The judge's position was that a child is automatically designated a sex offender upon an adjudication of guilt of a sex offense. In spite of the child's low IQ, the judge ordered DJJ to treat him as a sex offender. An appeal to circuit court is pending.

This article contains my observations about the juvenile sexual offender statute. The law is complex, and the consequences of being declared a sex offender are severe. No child should be allowed to proceed without an attorney when charged with a sex offense.

KRS 635.500, effective 7/15/94, creates a new classification of juveniles - sex offenders. KRS 635.505 defines a "juvenile sexual offender" as a child under 18 who has been convicted of designated offense(s) and is NOT actively psychotic or mentally retarded. The offenses which can result in a juvenile being designated a sex offender are all those contained in KRS Chapter 510, including sexual misconduct and indecent exposure, attempts to commit any 510 offenses, incest (530.020), unlawful transaction with a minor (530.064), and use of a minor in a sexual performance (531.310). KRS 635.510 provides that a child "may be declared" a juvenile sexual offender under certain circumstances and KRS 635.515 states that the juvenile shall be committed to DJJ "if the juvenile court declares the child to be a juvenile sexual offender."

A mental health assessment is mandatory "upon final adjudication by the juvenile court." KRS 635.510(2). The juvenile court judge "shall order" a mental health assessment to be conducted on the child by the DJJ sexual offender program or by a qualified mental health professional (see KRS 600.020(41)) approved by the program. The evaluator "shall recommend the appropriate course of treatment." Thereafter, the juvenile judge or other authority designated by the judge "shall initiate a referral to the program for evaluation and treatment as indicated." KRS 635.510(2).

If a juvenile is declared a juvenile sex offender, he must receive treatment in a Juvenile sexual offender treatment program (SOTP) for a minimum of two years with a maximum treatment time of three years. KRS 635.515 (1). However, the juvenile shall not remain in the care of DJJ after age 21. KRS 635.515 (1). Moreover, DJJ "shall utilize the treatment setting which provides the least restrictive alternative as defined in KRS 600.020." KRS 635.515 (2). Pursuant to KRS 635.545, DJJ shall maintain the names of program participants for a 15 year period.

There are specific requirements regarding the treatment agreement. KRS 635.515 requires the program to develop a written treatment agreement containing the responsibilities of the juvenile sex offender, his family and the program. The contents shall include attendance, participation in education, planning and completion of treatment goals, curfew, home visits, participation in parenting groups and family counseling, continued contact with program, schools and courts and discharge criteria. KRS 635.515 (3). The agreement shall be presented to the court and the court shall include it as part of its order except for good cause. KRS 635.515 (4). The program must send written reports to the juvenile judge every 60 days. KRS 635.510 (5). [Trial counsel should ask at disposition to be served with a copy of the 60-day report and the individualized treatment plan.]

The reports shall include information about the current treatment program, an assessment of the juvenile's current condition and any recommendation by program staff. KRS 635.510 (5). Moreover, the case may be called for review on recommendation of program staff or the juvenile court judge. KRS 635.510 (6). Finally, a discharge review shall be requested by the program sixty (60) days prior to the recommended release date. KRS 635.510 (7).

The first and most critical question is whether the juvenile is even eligible to be declared a sex offender. Many kids who appear in juvenile court are not functioning at a high intellectual level and/or are mentally disturbed. Since juveniles who are; "mentally retarded" or "actively psychotic" are not eligible for sex offender classification, reliable information on those important questions is essential. If a juvenile's IQ is below 70 he should not be designated a sex offender. See the DSM IVR and KRS 532.130.

The next question is whether the juvenile has been "declared" a sexual offender. The language of the statute clearly indicates that an affirmative act by the juvenile court declaring a child to be a sexual offender—is necessary before the KRS 635.515 treatment requirements apply. Note that KRS 635.510(1)(a) indicates that a juvenile may be declared to be a sex offender before adjudication. If a prosecutor requests such a premature declaration, there are certainly issues concerning violation of the presumption of innocence, due process clause and the prohibition on arbitrariness contrary to the United States and Kentucky Constitutions.

If a child is declared to be a sex offender, the mental health evaluation is required. It should be performed between adjudication and disposition to be meaningful. Sometimes the evaluator will find that the juvenile is not actually a sex offender or that sex offender treatment is inappropriate. The person performing the evaluation must be approved by DJJ's SOTP and must be a qualified mental health professional such as a physician, psychiatrist, psychologist with a doctorate or masters and specified qualifications, nurse or licensed clinical social worker with certain qualifications. The evaluation may not be performed by a CFC or DJJ social worker with a bachelor's degree, and a course of treatment must be recommended.

At disposition the judge "initiates referral" to a treatment program. Residential treatment is not necessarily appropriate. DJJ is required to use the least restrictive treatment alternative. Moreover, the child may participate in more than one treatment program over the two year period.

Note the requirements for the treatment agreement which should be very comprehensive and must include criteria for attaining discharge from the program. If the treatment agreement lacks any of the critical components particularly discharge criteria, an objection may be appropriate.

The sixty day reports should be substantive. If the juvenile is not making progress, he may be in an inappropriate program. Moreover, there may be issues surrounding a juvenile's unwillingness to admit responsibility. While many juveniles have pled guilty to sex offenses, others insisted on a trial and denied guilt. Conditioning treatment on an admission of guilt in the latter situation raises constitutional questions.

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