Jonathan Cruz was 11 years old in 2016 when he allegedly had sexual contact with 5 year old J.Z. Six years late, J.Z. had a triggering event that caused him to remember the incident. The State charged Mr. Cruz, then 17, as an adult with Rape of a Child in the First Degree. The Court held a capacity hearing to determine whether Mr. Cruz understood that what he did to J.Z. was wrong in 2016. The Trial Court dismissed the charge, concluding the State failed to meet its burden to demonstrate Mr. Cruz had capacity. The State appealed the dismissal. Division I reversed and remanded for further proceedings. Specifically, Division I ruled that the Trial Court’s finding that there was not “clear and convincing evidence that Mr. Cruz understood his actions were illegal and could result in detention or legal consequences” [pg. 3] was the incorrect because it misapplied the correct legal standard.
When determining capacity, Washington courts engage in a fact-specific inquiry that “must be in reference to the specific act charged.” State v Ramer, 151 Wn.2d 106 at 114 (2004). Washington courts have recognized the “[w]hen a child is accused of a crime which involves sexual misconduct, it is more difficult for the State to prove the child understood the conduct was wrong.” Id. at 115. There are seven factors that may be relevant in determining whether a child knew the act committed was wrong:
(1) the nature of the crime; (2) the child’s age and maturity; (3) whether the child showed a desire for secrecy; (4) whether the child admonished the victim not to tell; (5) prior conduct similar to that charged; (6) any consequences that attached to the conduct; and (7) acknowledgement that the behavior was wrong and could lead to detention.
State v J.P.S., 135 Wn.2d 34, 38-39 (1998). “A child’s age, maturity, experience, and understanding may all be relevant in deciding if a given child had knowledge of the act’s wrongfulness at the time it was committed.” Id. at 39. “Also relevant is testimony from those acquainted with the child and the testimony of experts.” Id. The legal test is whether the child had knowledge of the wrongfulness of the act at the time the child committed the offense and not that the child realized it was wrong after the fact. Id. at 37-38. The legal test for capacity “does not require that the child know the act was illegal or understand the legal consequences of the act.” Id. at 38.
Like Division II, [we] are required to follow Ramer and [Division I] agree that the State must establish by clear and convincing evidence that the child had the ability to form criminal intent. “[T]here remains no requirement that the State show that the child understands the specific legal consequences that they face for committing the act.”
Division I informed the Trial Court that it was permitted to consider additional evidence at a new capacity hearing. This writer anticipates the defense will seek a forensic expert on child development. It is not clear one was previously utilized. Mr. Cruz allegedly engaged in very serious conduct that is unusual for most eleven year-olds.