Dahlia Lithwick: When Age Is Just a Number

Anyone who's ever been 15 knows that the question of when childhood ends and adulthood begins is complicated. At that age, one can veer between rational decision-making and delusions of fabulous self-importance about 30 times each day. That's why our legal system tries—not always successfully—to draw a nuanced, fact based line between childhood and adulthood. It's why the age of consent in some jurisdictions is 14 while in others it's 18, even though teenagers everywhere really, really like sex.

And that's why the comparison between the 465 youngsters seized from a Texas polygamist ranch in April and a young Canadian man currently being tried at Guantánamo Bay is so illuminating. In both cases, when it came to treating children like adults and adults like children, the government was hopelessly confused. Considered side by side, the two cases reflect our troubling legal tendency to overprotect those teens we deem to be victims and overpunish those we consider violent.

The decision by Texas Child Protective Services to pluck hundreds of youngsters from the compound of the Yearning for Zion ranch was rooted in a fatally romantic vision of childhood. In April, the state initiated a sweeping raid based on what may have been a fraudulent sex-abuse hot-line call, as well as the state's allegation that five young girls at the ranch had been sexually abused by older men. Last month two state appellate courts determined that the removal of hundreds of small children and married, consenting women was unwarranted. Although Child Protective Services had argued that the young people were in immediate danger as a consequence of the polygamists' dangerous beliefs, the courts disagreed on both counts. Many of those removed were not children—the age of consent in Texas is 17, and of the 31 girls initially removed as underage mothers, 15 were, in fact, adults and one was 27—nor were they in any immediate danger, and many were old enough to make their own legal decisions. Furthermore, even if those decisions were the product of religious brainwashing, the appeals courts would not characterize exposure to those ideas as abuse.

The Texas authorities mistakenly believed that everyone it had grabbed on the ranch was a too-impressionable child. The Texas courts, on the other hand, credited those same children with a broad capacity to make autonomous legal decisions. Teenagers who are sober, conservative, religious and married don't quite match up with our streetwise notions of contemporary MTV adolescence. But, in the eyes of the Texas courts, that doesn't necessarily make them victims of abuse.

Now consider Omar Khadr, a 21-year-old Canadian who has been held at Guantánamo Bay for six years while awaiting trial for crimes he is accused of committing in Afghanistan at age 15. Khadr faces a life sentence for allegedly throwing a grenade in a fire fight, which resulted in the death of a U.S. soldier. Khadr's lawyers had sought to have the case against him dismissed because the Optional Protocol of the U.N. Convention on the Rights of the Child affords special protections to soldiers under 18, treating them as victims to be rehabilitated. But last month the military judge presiding over Khadr's tribunal denied that motion, and so Khadr will be tried as an adult, just as he's been incarcerated and interrogated as one. In the eyes of the Pentagon, a 15-year-old kid was a wholly autonomous adult.

The House is now contemplating a child-soldier bill, which has already passed in the Senate. Like the U.N. Convention on the Rights of the Child, the legislation deems young soldiers under 18 as fundamentally different from adults, and one provision would seek to prosecute anyone involved in the "recruitment or training" of juveniles under the age of 15. Nobody disputes that Omar Khadr was radicalized by his father as early as age 11, when he was trotted around Afghanistan to meet with Al Qaeda big shots, so how can it be that Khadr is both the "victim" of recruitment and training and also a full-fledged, culpable adult? Like the Texas Child Protective Services system, the child-soldier bill assumes that children are enormously susceptible to brainwashing—so much so that their own decisions, even the choice to take up arms, are not free and autonomous. Like the youngsters at the Yearning for Zion ranch, Khadr is thus a child by one legal model and an adult by a second.

So which one is it? Are these teens innocent teenage victims or incorrigible demons? Are they grown-ups with slightly less facial hair? Or the lapdogs of adults who brainwash them?

One way to reconcile the confused decisions about the Texas polygamists and Omar Khadr is to recognize that the legal system operates in broad caricatures when it comes to children, manifesting disproportionate fear of violent kids as wholly out of control while treating all victims as though they are incapable of protecting themselves. Maybe all this legal confusion is a function of the dual nature of American teenagers, who invariably seem too old and too young for their own good. Or maybe it just reflects our own larger uncertainty about whether to believe too broadly that teens are perfect and pure—or dangerous, unguided missiles.