Juveniles A, B, C, D, E, Matter of

Decision Date11 March 1993
Docket NumberNo. 58364-1,58364-1
Citation847 P.2d 455,121 Wn.2d 80
Parties, 61 USLW 2584 In the Matter of JUVENILES A, B, C, D, E.
CourtWashington Supreme Court

Washington Appellate Defender Ass'n, Suzanne L. Elliott, Seattle, for appellants.

David S. McEachran, Pros. Atty., and Greg Greenan, Deputy County Prosecutor, Bellingham, for respondent.

Jacqueline S. Hebert, Seattle, for amicus curiae on behalf of American Civ. Liberties Union.

DURHAM, Justice.

Five juveniles were found to have committed various sexual offenses under RCW 9A.44. Relying upon RCW 70.24.340(1)(a), which provides for mandatory AIDS testing of convicted sexual offenders, the Whatcom County commissioner ordered the juveniles to submit to an HIV test. In a direct appeal, the juveniles challenge the applicability and constitutionality of this statute. We affirm the commissioner's ruling.

All of the sexual offenses were committed in Whatcom County. Juvenile "A", a 14-year-old male, was charged with the crime of indecent liberties, RCW 9A.44.100(1). Following a fact finding hearing, the judge pro tempore found that on or about June 30, 1988, "A" had sexual contact with a youngerboy through forcible compulsion. Specifically, "A" held the younger boy down and "used butter" to "sodomize[ ]" him.

Juvenile "B", a 14-year-old boy, was charged with first degree child molestation, RCW 9A.44.083, which occurred on July 15, 1988. "B" pleaded guilty to this charge, stating that he "kissed [a 4-year-old girl] on her breast and layed [sic] on top of her." The affidavit of probable cause further alleged that "B" "removed her pants and licked and kissed her vaginal area." The young girl originally told her parents that penetration had occurred, but later denied this to the police. The acts of molestation occurred while "B" was alone with the younger child for a period of time in his house.

Juvenile "C", a 15-year-old girl, was charged with three counts of first degree child molestation, RCW 9A.44.083, which occurred on or about July 1, 1988. The last two counts were dropped when "C" pleaded guilty to the first count. In her plea, "C" stated that:

I let [a 5-year-old boy] lay on top of me. We were both clothed. I let him touch my breast and look inside my underwear. He also kissed my mouth.

The affidavit for probable cause contains additional allegations. First, while baby-sitting, "C" touched the young boy's penis on several different occasions. Second, while baby-sitting a 4-year-old girl, "C" removed her clothes, scratched herself in the genitals, and then proceeded to place her hand inside the young girl's underpants, rubbing her to the point of pain. Finally, while baby-sitting, "C" undressed a young boy, showed him to the other children and touched his penis.

Juvenile "D", a 16-year-old male, was charged with indecent liberties, RCW 9A.44.100(1), which occurred on or about June 2, 1988. "D" pleaded guilty and stated the following:

[An 11-year-old girl] and I went to the Lynden Middle School to get some pop. I started tickling her, and then I kissed her. We started playing around and I asked her if she wanted to go to the back of the middle school. She said yes, and we laid down and she was laughing. We played around some more. I took off her shirt and unbuttoned her pants and touched her breasts and crotch area.

The affidavit of probable cause additionally alleged that he removed his clothes, as well as her clothes. Moreover, "[h]e rubbed his genitals and hands against [her] genitals for several minutes."

Juvenile "E", a 15-year-old boy, was charged with first degree child molestation, RCW 9A.44.083, which occurred on October 13, 1988. "E" pleaded guilty, stating that he had "sexual contact" with a 7-year-old boy. According to the probable cause affidavit, the incident occurred while "E" was baby-sitting a 7-year-old boy. On three separate occasions during the evening, "E" entered the boy's room and placed his mouth on the boy's penis.

Pursuant to RCW 70.24.340(1)(a), the State sought orders from the juvenile court allowing HIV testing of all five juvenile offenders. Appellants opposed the HIV testing, alleging numerous constitutional grounds. A hearing was held before Commissioner Morrow on November 15, 1989, to determine the constitutional issues. Commissioner Morrow upheld the statute, finding it consistent with the Fourth Amendment and the right to privacy. He later issued an order directing HIV testing of the juvenile offenders, but then stayed this order pending appellate review. We accepted Division One's certification of this case.

ADJUDICATION/CONVICTION

As part of the public health chapter covering sexually transmitted diseases, RCW 70.24.340(1)(a) mandates HIV testing for all persons "[c]onvicted of a sexual offense under chapter 9A.44 RCW". Testing is to occur soon after sentencing upon an order of the sentencing judge. RCW 70.24.340(2). All tests are to be performed by the local health department and must include both pre- and posttest counseling. RCW 70.24.340. Distribution of the test results is strictly limited to those persons with a genuine interest. RCW 70.24.105(2).

Appellants argue that RCW 70.24.340(1)(a) does not apply to juvenile sexual offenders, because the statute requires a "conviction" prior to mandatory HIV testing. Technically speaking, juveniles are not "convicted" of crimes, but rather "adjudicated" to have committed offenses. As a result, appellants contend, the Legislature's use of the word "convicted" evidences an intent to test only adult sexual offenders.

When statutory language is used in an unambiguous manner we will not look beyond the plain meaning of the words. Everett Concrete Prods., Inc. v. Department of Labor & Indus., 109 Wash.2d 819, 822, 748 P.2d 1112 (1988). Unfortunately, however, such is not the case with the statute before us. The statute uses both the terms "convicted" and "offense" without differentiation. Subsection (1) of RCW 70.24.340 uses the term "convicted of", while subsection (3) states that the section applies to "offenses"--a term inclusive of both adult and juvenile crimes. 1 Furthermore, the Legislature's use of "conviction" in statutes to refer to juveniles appears to be endemic. Numerous other statutes, including sections of the Sentencing Reform Act of 1981, RCW 9.94A, and the Juvenile Justice Act of 1977, RCW 13.40, use "convicted" to reference both adult and juvenile offenders. See, e.g., RCW 9.94A.030(9) (" 'Conviction' means an adjudication of guilt".); RCW 9.94A.030(12)(b) ("Criminal history" includes a defendant's prior convictions in juvenile court.); RCW 13.40.280(4) (refers to the "convicted juvenile"); RCW 43.43.830(4) ("Conviction record" includes crimes committed while either an adult or juvenile.); RCW 46.20.342(2) (refers to the "conviction" of a juvenile); RCW 74.13.034(2) (refers to "convicted juveniles"). In fact, several statutes use "convicted" specifically to reference juvenile sexual offenders. RCW 9.94A.360; RCW 9A.44.130(3)(a) ("the term 'conviction' refers to adult convictions and juvenile adjudications"). It is readily apparent, therefore, that we cannot rely exclusively on the technical meaning of "convicted" to resolve this issue. 2

Instead, it is necessary to turn to statutory construction to determine the meaning of this statute. Morris v. Blaker, 118 Wash.2d 133, 143, 821 P.2d 482 (1992). In accomplishing this task, our primary directive is to adopt that interpretation which best advances the statute's legislative purpose. See, e.g., State v. Elgin, 118 Wash.2d 551, 555, 825 P.2d 314 (1992).

The purposes of the mandatory HIV testing statute are broad:

The legislature declares that sexually transmitted diseases constitute a serious and sometimes fatal threat to the public and individual health and welfare of the people of the state. The legislature finds that the incidence of sexually transmitted diseases is rising at an alarming rate and that these diseases result in significant social, health, and economic costs, including infant and maternal mortality, temporary and lifelong disability, and premature death.

RCW 70.24.015. By adopting this statute, the legislative intent was "to provide a program that is sufficiently flexible to meet emerging needs, deal[ ] efficiently and effectively with reducing the incidence of sexually transmitted diseases, and provide[ ] patients with a secure knowledge that information they provide will remain private and confidential." RCW 70.24.015.

Interpreting RCW 70.24.340(1)(a) so as to include mandatory HIV testing of juvenile sexual offenders is consistent with the statute's broad public health policies. 3 The statute potentially benefits both juveniles and society by making the offenders aware of their HIV status. Anonymous Fireman v. Willoughby, 779 F.Supp. 402, 417 (N.D. Ohio 1991). If a juvenile sexual offender is infected, the statute provides counseling, and an opportunity to adjust future behavior to avoid infecting others. A juvenile sexual offender who is aware of an infection might also be treated with AZT or other drugs to stall the onslaught of the disease. Government of V.I. v. Roberts, 756 F.Supp. 898, 903-04 (D.V.I.1991). The victims of the juvenile sexual offender also benefit by learning whether they may have been exposed to the AIDS virus.

Excluding juvenile sexual offenders from the statute's operation would only thwart the testing statute's broad public health policies. There is no evidence that the Legislature intended to limit the effectiveness of the mandatory AIDS testing statute by narrowing its application to adult sexual offenders. Indeed, the legislative mandate to protect the health of victims, offenders, and society is better served when juvenile sexual offenders are included in RCW 70.24.340(1)(a)'s testing provisions.

Appellants rely heavily upon a recent Attorney General opinion, AGO 23 (1991), which concluded that RCW 70.24.340(1)(a) does not apply to...

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