victim.”64 The court suggests a range of possibilities, from children who were sufficiently
exploited “that in reality culpability was extinguished,” to situations particularly involving older
youth offenders who are now adults whose “culpability [is] diminished but nevertheless . . .
significant,” to situations where “the fact that the defendant was a victim of trafficking will
provide no more than a colourable excuse for criminality which is unconnected to and does not
arise from their victimisation.”65 While engaging in the fact-specific analysis in each of the
appealed matters, the court also offers its rationale as a general guide for determining whether to
prosecute in similar circumstances.66 Among the specifics of the age and trafficking
determinations, the Court of Appeal affirmed the primary importance of the best interests of the
children at issue.67
The difference in circumstances between the minors in the United Kingdom case and
gang-involved minors in the United States is comparable to the difference between international
and domestic victims of commercial sexual exploitation. While the plight of a child who is held
in sexual slavery in a foreign country where she is linguistically and socially isolated is more
striking (and marketable) than that of a poor minority child who is commercially sexually
exploited in her own neighborhood, it is no less horrific and violative of the child’s human rights
and best interests. We have a legal framework—the statutory incompetence of children under a
certain age to consent to sexual contact—that asserts that sexually-exploited children are not
willing participants.68 We have a similar legal framework that adjusts a minor’s criminal capacity,
the mens rea, in light of developmental and experiential immaturity.69
This United Kingdom decision, taken with the U.S. Supreme Court’s most recent series
of cases relating to juvenile capacity and culpability,70 calls into question how we parse juvenile
misconduct with respect to both the legal infirmity of age and the related vulnerability to
exploitation. The Supreme Court has been instrumental in changing the course of juvenile justice
in the United States, recognizing juvenile due process rights that had previously been ignored.71
Most recently, in the course of striking down the juvenile death penalty72 and rejecting mandatory
life without parole for juveniles,73 the Court established legal reasoning that relies heavily on a
scientific understanding of adolescent cognition and the resulting knowledge that the behavioral
products of the still-developing brain of an adolescent cannot be considered as blameworthy as
64 Id. at ; see also Jones, supra note 18, at 11 (“Each child’s capacity for understanding the mens rea requirement in each crime
charged must be individually evaluated.”).
65 Id. at .
66 Id. at .
67 Id. at . While the court here bases this on the mandate of the CRC, to which the United Kingdom is bound, U.S. courts can
similarly recognize the best interest standard based upon common practice and state statutes.
68 Murillo, supra note 42, at 717–18.
69 Jones, supra note 18, at 1; Rightmer, supra note 18, at 5–8.
70 Roper v. Simmons, 5431 U.S. 551, 568–-75 (2005) (holding that execution of individuals who were juveniles at time of their crimes
is prohibited by the Eighth and Fourteenth Amendments and discussing developmental reasons behind states’ outlawing of capital
punishment for juvenile offenders); Miller v. Alabama, 132 S. Ct. 2455, 2463–-68 (2012) (holding that sentencing juvenile offenders
to life imprisonment without possibility for parole violates the Eighth Amendment and relying on juvenile’s developmental
immaturity per Roper); see also J.D.B. v. North Carolina, 131 S. Ct. 2394, 2406 (2011) (“[W]e hold that so long as the child’schild's
age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its
inclusion in the custody analysis is consistent with the objective nature of [the voluntariness of a juvenile’s Miranda waiver] test.”).
71 Ashley A. Hughes, The Evolution of Youth as an Excuse: Striking a Balance Between the Interest of Public Safety and the Principle
that Kids are Kids, 29 TOURO L. REV. 967, 978–93 (2013) (providing an overview of juvenile justice from a federal perspective); see
Kent v. United States, 383 U.S. 541, 557 (1966) (granting juveniles due process rights generally); see In re Gault, 387 U.S. 1, 57
(1967) (recognizing that juveniles have the specific due process rights of notice of charges, opportunity to be heard and confront
witnesses, representation by counsel); see In re Winship, 397 U.S. 358, 368 (1970) (requiring proof beyond a reasonable doubt of all
elements if charged with an offense that would result in criminal prosecution if committed by an adult).
72 Roper, 543 U.S. at 578–79.