Sealing Juvenile Sexual Assault Adjudications
[“State v. J.C.”]
J.C. was 13 when he did volunteer work at a preschool. He became involved with two younger children, a girl and boy, age 5. He started his abuse of them by exposing himself. Both children eventually exposed themselves to J.C. One of the children did not want to do this, but J.C. said “show me anyway.” J.C. asked the boy to touch his penis, and the child complied. J.C. told both children not to tell anyone what they had done. J.C. later admitted the exposures to a detective.
J.C. was initially charged with Child Molestation in the First Degree (‘CM1’) and Indecent Exposure. Through plea bargaining, J.C. only plead guilty to Indecent Liberties by Forcible Compulsion, which is a lesser offense than CM1. However, the ‘forcible compulsion’ component or element is not present in CM1.
J.C. successfully completed a Special Sex Offender Disposition Alterative (‘SSODA’) and other court-ordered requirements. He was released from probation supervision, and in 2012 was no longer required to register as a sex offender. As an adult in 2014, after waiting for the prescribed time period, J.C. moved to seal his juvenile record. Based on the Washington Legislature’s 2011 statutory modifications, sealing of juvenile felony sex offenses is required if 6 conditions are met.
At the motion hearing, the State agreed J.C. met all conditions except RCW 13.50.260(4)(a)(v), which requires the juvenile not be “convicted of … indecent liberties that was actually committed with forcible compulsion.” The trial court denied J.C.’s motion to seal. He appealed, arguing that no force was ‘actually’ involved, indeed, his original CM1 charge did not contemplate force being used. His plea bargain otherwise frustrated legislative relief which he could count on if certain standards were met.
J.C. argued that as a matter of constitutional construction, RCW 13.50.260(4)(a)(v) required the trial court to determine whether he “actually” used forcible compulsion. He also argued that because he did not use forcible compulsion, his motion to seal should be granted by the appellate court. The Court of Appeals did not find it appropriate to render an ultimate decision, because it agreed with J.C. that the trial court was required to determine whether he used forcible compulsion.
In this case, J.C. being originally charged with CM1 will likely help him, since the appellate court held that the stated intent behind RCW 13.50.260(4)(a)(v) is “in favor of the person seeking to have his or her juvenile record sealed. State v. J.C., 192 Wn.App 122, 132 (Jan. 2016). The appellate court provided guidance by giving definitions to the trial court of the word actually: “synonymous with defacto, genuinely, really, truly, veritably… the trial court must consider what ‘genuinely, really, truly’ happened in fact.” State v. J.C., at 130. The trial court must “look past the pleadings and consider the specific facts of the person’s prior adjudication.” State v. J.C., at 131.
The appellate court believed that “the inquiry will be conclusively answered by the findings of fact if the case was tried or in the plea statement if disposition was by plea.” State v. J.C., at 133.
However, it is difficult not to agree with Judge Korsmo’s concurring opinion that trial courts trying to determine long after disposition what “actually” was involved will end up being in a “wild goose chase”. He advised a simpler approach: J.C.’s case should have been reviewed as an ‘In Re Barr’ plea. In Barr, a person pleads guilty to a substituted charge and a trial court can accept the plea even though there is no factual basis for it, provided there is a factual basis for the original charge. In Re Barr, 102 Wn.2d 265 (1984). Judge Korsmo agreed with the result here, because J.C. had been charged with CM1. He would allow Barr pleas in indecent liberties cases to be subject to sealing when the charged greater offense was subject to sealing. State v. J.C., at 136.
My reading of this appellate opinion is that juvenile practitioners will almost certainly put in In Re Barr language in their client’s guilty plea statements, when plea bargaining down a CM1 charge to Indecent Liberties.
If you have a criminal matter please contact Jan Olson at Ellis, Li & McKinstry PLLC, (206) 682-0565.