Why Weren’t the Laws Concerning Minors Followed in the Duggar Case?

Why Weren’t the Laws Concerning Minors Followed in the Duggar Case? May 26, 2015
Photo Source: Flickr Creative Commons by Tori Rector https://www.flickr.com/photos/124387535@N03/
Photo Source: Flickr Creative Commons by Tori Rector https://www.flickr.com/photos/124387535@N03/

I haven’t paid much attention to the case of Josh Duggar.

I never watched the cable reality show that brought his family to fame. I am neither a fan nor a hater of this family. They just aren’t on my radar.

When Josh Duggar’s juvenile records were revealed, my mind was elsewhere. I was vaguely aware that the situation surrounding Mr Duggar had developed into another round of the culture wars, but nothing more.

Then, I realized that, based on what I’d read, Mr Duggar did not receive the legal protection that he was entitled to as a minor offender. That made the situation interesting to me.

Here’s what little I know.

Josh Duggar, who is a member of a large family that has a successful reality tv show, evidently engaged in some sort of sexual touching of young females when he was 14 years old. His father subsequently filed a report with the police about this behavior. There is no reported history of repeat offense.

Josh Duggar is now an adult. He is married and has children of his own. The police report from his past has surfaced. This police report has become a means of attacking the philosophy and religion of his family. This has led to a media feeding frenzy.

My questions about this do not concern the treatment Mr Duggar is receiving from the media. I am wondering why, since he was a minor at the time these things occurred, his records were made public in the first place.

There is a reason for sealing the judicial and criminal records of minors. That reason is simply that minors can and often do commit criminal acts and then never do it again. Adolescent offenders are actually likely to go on to lead productive lives.

I personally know people who committed crimes when they were minors and who have lived long productive lives as successful members of the community. I grew up with these people. Their actions as youthful offenders in no way represents who they are now. They, quite literally, grew out of their violent adolescence and went on to live productive and respectable lives.

Our juvenile justice system is based in part on the understanding that minors, in particular adolescents, have an enormous capacity for positive growth. They are in fact and in truth, children. Their ways are not fixed. With proper intervention and with love, they can and they often do, change entirely.

That is why we do not put minors in adult prisons and do not, with a few exceptions for specific violent crimes, try them as adults. It is also why we seal their records.

The reasoning behind sealing the records of adolescents who commit crimes or who have various problems is that adolescents are not fully formed adults. They are not culpable for their actions in the same way that an adult would be. They also have a much greater potential for successful and life-long reform than an adult would have.

Sealing an adolescents’ records is a way of giving them a second chance. When they grow up to be productive adults who do not repeat the behaviors that got them into trouble, it is considered that they have demonstrated successful reform. Sealing their records, or even expunging their records, is a way our legal system has of giving minors a second chance at life.

My question in the Duggar situation is why wasn’t this done with his records?

I understand that he and his situation are being used as a weapon in the culture wars. I also understand that these culture wars are ruthless. Josh Duggar’s past is a tactical weapon. It will be used as a tactical weapon. The law does not enter into that.

However, the law still exists. Josh Duggar was a minor at the time of these offenses. So far as I know, there is no record of a repeat offense. Why was the law not applied to Josh Duggar as it is to other juvenile offenders?

His records should have been sealed. In fact, they probably should have been expunged.

Culture wars aside, the legal protections that are available to minor offenders were, for some reason, denied Josh Duggar.

There are a lot of other questions I could ask about this, but I’m not so sure they’re pertinent. I honestly don’t want to know the details of what he did that got him into this situation. I also don’t care if his family’s television show stays on the air or not.

What concerns me is that he was himself a minor child when these events took place and his rights as a minor offender were, for reasons unknown, denied him. As I said, there is a purpose for these laws, and it is a good purpose.

Contrary to prevailing perceptions, most adolescent offenders actually do grow out of their problems. A recent PBS documentary claimed that as high as 80% of youthful offenders never repeat their crimes. 

Actors Steven McQueen, Marc Wahlberg, Robert Mitchum and Merle Haggard are all entertainment industry examples of juvenile offenders who reformed. I’ve seen many adolescent offenders grow up and live productive lives.

The culture wars’ feeding frenzy notwithstanding, I have a question as to whether or not Mr Duggar’s legal rights as a minor offender were violated. So far as I know, we are dealing with a police report rather than a conviction, and this police report concerns the actions of a 14-year-old offender. If there are extenuating circumstances which required that his records not be sealed, I do not know about them.

This situation raises questions about youthful offenders and how they are treated generally. Most youthful offenders will not repeat their offenses. As Mr Duggar’s situation illustrates, youthful offenders who later become prominent citizens may in fact be facing a kind of social and cultural life sentence for their offenses if we do not seal their records.

Do we want to allow youthful offenders second chances, or do we want to treat them the same as we do adults?

That’s a question we need to consider. The situation with Josh Duggar illustrates just how serious it can become.

 

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55 responses to “Why Weren’t the Laws Concerning Minors Followed in the Duggar Case?”

  1. Does it matter that he was never formally charged or convicted of a crime? The police report was requested and delivered via a FOIA request, so it seems like it was public record?

    • That very well may be an important factor. From the Arkansas Attorney General:

      “Generally, however, it is my opinion that law enforcement investigative records wherein the defendant is a juvenile are subject to public inspection and copying under the FOIA, as long as the investigation is, as you state, closed, and no protective order has been entered.”

      http://ag.arkansas.gov/opinions/docs/92-237.html

      “It is therefore generally impermissible to deny access to records simply on the ground that exempt information is commingled with non-exempt information. Of course, the determination whether a particular record or information falls within A.C.A. § 12-12-506 or § 9-27-352 is one that must be made on a case-by-case, record-by-record basis. You have stated regarding many of your employees that “[o]ften their personnel records contain job information that is child maltreatment registry information, information regarding dependency-neglect proceedings, or both.” I will acknowledge, but cannot test, this statement. I can do no more than reiterate that assuming a personnel or job performance record in fact contains information exempted by subsection 12-12-506 or 9-27-352, the reasonably segregable portion of the record must be provided after deletion of the exempt information.”

      http://ag.arkansas.gov/opinions/docs/2006-189.html

      • Labeling behaviors as examples of “culture wars” immediately dismisses them as unimportant and inconsequential. Mr. Duggar’s behaviors are important because of his and his family’s propensity for defaming others while maintaining a façade of “decency.” Their behavior is hypocritical – at least.

        • Actually, Mr Duggar’s actions are important because of the damage done to his victims. His politics and comments he or his family members might have made on other topics are non sequitur. Making this about personal animosity toward the Duggars and not the real issue of sexual exploitation of children is itself hypocritical – at least.

          • I have no personal animosity toward the Duggar family. I do believe they exploit “family values” at the expense of others which is one of the reasons why our Lord told us not to judge. Yes, the sexual exploitation of children is the central concern, but that concern is too often deflected onto the supposed bad behavior of others. It is clearly an example of “the pot calling the kettle black.”

        • Ken, I’d rather not open that door. I don’t like name-calling and personal vitriol and from what I’ve seen these discussions about the Duggars usually end up there.

  2. When the records were released, the names, ages and addresses of all the minors were redacted. It’s only because the of the names of his parents and the fact that they are famous that people were able to figure out who it was. Does this meet the standard of protecting him under the law? I’m not an attorney but I’m sure the people that run In Touch magazine have them on staff and checked it out first.

  3. I believe the 2006 police report was never sealed in the first place. Whether that was the fault of the officer who took the complaint or the Duggars themselves I do not know.

  4. This is the weirdest phenomena I’ve seen in a while. I watched that show occasionally. I thought the family was nice, but I am not a fan of Bill Gothard as I find him legalistic and just wrong about a lot of things.
    One of your colleagues wrote a rather nasty article and there are lots of people chiming in. They seem to enjoy the suffering because they don’t like how many children they have, their values and, especially, that they are Christians.

  5. Note: I delete unsubstantiated slanders about individuals, including Josh Duggar. Stick to what we know.

  6. You asked – “Do we want to allow youthful offenders second chances?”

    Absolutely, yes. Everyone deserves second chances, and I’m sure each of us has done things that we regret and that remembering the regret stopped us from doing it again.

    What’s the most concerning in this case Josh Duggar received many more chances, and kept doing it. It was not a one time isolated incident that he regretted and learned from. He did it multiple times, even after speaking with his parents and being sent from home to stay with a family friend.
    The other thing to be concerned about – the actions were against pre-teen girls that likely hadn’t even hit puberty. The youngest sister most likely involved wasn’t even ten. That’s not the same as a 14 year old being attracted to a developing teenage girl. That’s being attracted to a pre-pubescent child.
    Those are often the hardest urges and desires to overcome. I’m not saying it’s impossible, just much more difficult than other (more “normal”) urges.

  7. 80% of youthful offenders do not re-offend, huh? I’d like to see stats supporting that statement, particularly when the offender has molested a 5 yr old sibling, I’d bet everything (admittedly not much, sadly) that Josh has continued his kiddie sexual asault to this day. If you know of a cure for pedophilia, the world would love to hear it.

  8. 80% of youthful offenders never re-offend? Does that statistic apply to offenders who molest their 5 yr old sibling? Because there is no known cure for pedophilia, as far as I know, (Hope this version of my comment meets with your censor’s approval).

  9. Stick to what we know, Rebecca? Ok. Here is something I KNOW: There is no cure for pedophilia. I also know you won’t post this comment, either. Have a great day.

    • Question: Is a 14-year-old molesting a pre-teen the same as an adult molesting a child? You are conflating the two in an absolute manner.

      I do not know the answer to this question, although I tend to think that the answer is different for different 14-year-olds. I am not minimizing the damage to the younger child. I am also quite certain that the age difference between a pre-teen and a 14-year-old is great enough to create a predatory and coercive situation in which consent is impossible.

      What I am not certain about is both the degree of culpability of the 14-year-old and how fixed they are psychologically.

      What I am saying is that I think it’s possible that 14-year-old offenders may very well be redeemable in ways that a hardened adult is not. I am not even sure that I agree that the term pedophilia applies in this case, since we are talking about two children.

      On the other hand, you may be right that predatory sexuality is fixed and irresistible in anyone who ever practices it. If that is true, then we need to start building some mighty big prisons and enacting a great number of life sentences, beginning at, say, 12 years of age, and going up.

      • Yes, it is the same in terms of the effects on the child that is molested. I was molested by my 13 year old brother when I was 3 and the effects are lifelong, including depression and PTSD, which I didn’t especially recognize myself until I was treated (you always think it’s like that for everyone or shame holds you back or you figure you’re just “different”). Yes, you can live a good life, but a lot of therapy is required, especially if the molestation occurred during the pre-verbal stage.

        • I know something of the suffering of people who were molested as children. This happened to several people who are close to me. It takes courage for you to step up and say this. Thank you.

    • Montana5, if you define pedophilia as two children exploring their sexuality, and there is no cure for pedophilia, then the entire human race is full of pedophiles. It happens. Most of us grow out of it by the time we’re 17 or so, but it does happen.

      In Alabama, the age of consent is 16. How can you charge somebody who can’t consent to his own actions of pedophilia?

      • Ted, I think there is a real difference between two children of the same or nearly the same age exploring their sexuality and a teen-ager messing with a pre-teen. The difference in development and social power is much greater than the difference in years. The teen has far too much power in these situations for the actions to be anything other than predatory. It is also almost impossible for the younger child to resist.

        The question here revolves around how we should deal with this situation from a legal viewpoint. Should we automatically treat these teens with the same harshness that we would an adult who did the same thing? Is it possible for a teen who behaves this way to grow out of it? Are they pedophiles? What should our response as a society be to this problem?

        • You cannot tell developmental level by age alone, is a huge part of the problem with this. Age in these laws is entirely arbitrary.

          What may look unequal, my in fact be very equal. I am against judging children as adults, because development speed varies quite widely.

    • Pedophilia is not a recognized psychological condition until the offender is at least 16. A pedophile is an ADULT who is sexually attracted to children. This case does not meet that criteria. Sorry to interrupt your mindless Dugger bashing. Have a great day.

  10. I don’t know whether Josh’s juvenile rights were violated through the release of this report. I’m pretty sure that his victims’ rights were violated when this report was filed and promptly buried, without any kind of formal follow-up through the legal system or CPS. Why weren’t the laws concerning minors followed then, is indeed the question.

    For Josh’s sake too; this is not normal behavior for a 14-year-old.

    • Pretty sure the victims rights were violated by the release of this report also. In fact, the records have now been expunged (of course it’s too late.) How would any young woman feel having the fact that she was molested broadcast to the entire world? Shameful.

      • Indeed.

        Although I haven’t seen anything published, anywhere, which includes any name of any victim. I have seen some very unpleasant speculation as to which of his relatives he abused.

        But asking whether Josh’s rights were violated after the fact, with no concern over all the ways that the rights of his victims (and potential victims) were ignored at the time of the offense and at the time of the report, seems to me to be unjust.

        • That seems to have been the cops fault. He never filed the report at all, did he? Perhaps this is not surprising since it came out later that he was involved in child pornography. In fact, I think that’s when they discovered this report (when going through his files after his arrest on child porn charges.)

          Although no names have been released, it isn’t too difficult to figure out who got abused from what WAS released.

  11. A 14/15 year old boy engages in inappropriate sexual touching of girls slightly younger than himself. The parents find out; seek counsel. They send him away for a time for serious mentoring. They also (apparently) sought counseling for the girls involved. The behavior was reported to a state trooper who failed to properly report it; the same trooper was later convicted of sex crimes. When the trooper’s notes were found (a few years later), police did investigate, but determined the statute of limitations had expired, so no charges were filed. It is very possible that there is no actual juvenile record to have been sealed. The piling on by kind, caring non-judgmental liberals and progressives is frightening, but for one thing — it lets us see liberals/progressives true colors: they hate anything and everyone that is in opposition to their beliefs and their agendas. They also do not believe in forgiveness, repentance or second chances (except for those who agree with them). They demand tolerance, but reek of intolerance themselves; they are the worst kind of hypocrites.

    • Let’s not muddy the waters here. I know that this situation is being used as a weapon in the culture wars. But that doesn’t make what Mr Duggar did right. I am really only raising the issue of his age, which merited that his records be sealed or expunged if there are no further criminal acts. I have not heard of any further malfeasance on Mr Duggar’s part since he was 14.

      As for using this tragic situation as a weapon in the culture wars and conflating it into a condemnation of whole groups of people, that is not only bigoted, it is intellectually dishonest. The key here is that this bigotry is wrong. It is sinful. Do not turn around and do the same thing you are accusing others of doing.

      • The threshold question, which no one has answered, is did this police report even warrant “sealing” in 2006 under Arkansas law? What Arkansas law – if any – requires that it should have been sealed?

  12. Josh was 14 years old, we don’t really know what he did. 14 is a time when boys (and girls) are noticing their own bodies and becoming curious. The fact is, that we don’t know what happened, it could simply be something like “you show me yours, I’ll show you mine”. Something curious kids will do. It does not make it right but does not mean he should be vilified. If his dad is the one who reported him then he came down hard on his own son to teach him a lesson. It is not the business of the media or of any hater groups to use against him now. I once had the police take my son into a jail cell to teach him a lesson because I caught him playing with matches…it did not make him an arsonist but it taught him a lesson and it scared him to have to go into a jail cell, he never played with matches again and he turned out just fine. He went on to be a US Marine and a wonderful husband and father.

    • I WISH PEOPLE WOULD STOP USING CURIOSITY AS AN EXCUSE. There is never an excuse ot feel up your sisters and comments on here are why it keeps happening.”Oh he was just 14 or he was just curious” BLEH There’s also a difference between playing with matches and fondling you unconsenting sisters.INCEST should be treated seriously and not taken as ‘natural’,

  13. They DID NOT report to authorities. They went to a family friend who was a state trooper who .gave him a lecture and did nothing. One of the victims was 5 years old. He was in a position of authority over them. Why do you have no concern for the victims????

    • Rebecca is writing about only the information we have access to. She definitely cares about the victims.
      Btw, parents are not required to report this in Arkansas or every state.
      Why do you jump to such conclusions?

    • speaking of victims….why are you not outraged about the girl’s private sealed info being released along with Josh. This whole event smells of corruption.

  14. Does anyone know reliable statistics on incidence of sexual abuse of children? I’ve read some of the literature and there are a lot of conflicting statistics. Thanks

  15. I mean no disrespect, but if you care for the victims then why is the focus of your essay on Josh’s rights?

    • Because with rights, no one is safe from the government, and the government is the biggest, meanest you-know-what in the valley. Also, because human and civil rights for everyone is what makes this freedom clock tick.

  16. Back when I was taking a lot of psych courses on the way to becoming a teacher we had a lot of classes on how young teen-agers can do stupid things out of sheer adolescent curiosity. And if that were clearly the case, what parent would go running to the police or some government agency. to turn his child in??? And I wonder about how much some people really care for young people when their immediate reaction is to condemn parents who try to handle difficult situations themselves and not drag the police in. For as this case clearly proves the government can’t handle something as simple as. juvenile records that should be permanently sealed.

    • I agree and I would be very thoughtful about handling it at home before ratting out my kid to the cops. I just dont trust certain parts of the criminal justice system enough with something as important as my child’s future.

      That said, I must ask, why do you say the government failed in its duty to seal the record? This ENTIRE blog post and all these comments are predicated on the belief that the Ark gov had a legal duty to Josh Duggar to seal this record, but nobody here has demonstrated that such a duty exists in Arkansas when a parent reports that one of his minor sons is abusing one of his minor daughters.

      Where is that legal obligation stated? If it’s there, then we have a discussion, but there’s a big difference between “the law wasn’t followed” and “the law that I wish existed wasn’t followed.”

      Anyone….?

  17. The records were never sealed. Josh was 18 near 19 when the report was filed. It was not an official juvenile record since the statute of limitations had passed and he didnt follow proper procedure. Furthermore, some serious offenses cannot be sealed or expunged..

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