Local and national media widely reported on two Appellate Division decisions that overturned lower court rulings from different counties dealing with essentially the same subject matter. In the Interest of G.M.C. (June 14, 2019 A-0223-18T4) was from Monmouth County. In the Interest of E.R.M. (June 17, 2019 A-0533-18T4), was from Middlesex County. In each case, the county prosecutor sought an involuntary waiver from juvenile court to the Law Division so that a charged juvenile could be treated as an adult. In each, the judge denied the motion. In both, the trial court's denial was reversed for essentially the same reason. The prosecutors may now deal with these cases though the adult criminal process.

The court in G.M.C. stated: “The likelihood of conviction was not for the judge to decide on a waiver motion…. Rather than focusing on whether the prosecutor's consideration of the statutory factors supported the application, the judge decided the case for himself.” Similarly, E.R.M. held: “It was the family court's role to determine if the prosecutor's decision was an abuse of discretion, not whether… the offense warranted being addressed in adult court.”

It was the rationale of the trial courts that produced headlines and commands our attention. Both opinions were released on the Internet only and “Not for Publication.” The decision not to publish the opinions commands our attention, as well.

The facts alleged in G.M.C. were that a 16-year-old boy sexually assaulted a 16-year old girl at a pajama-themed party, “filmed himself penetrating [her] from behind on his cell phone, displaying her bare torso the assault” and then texted that film to his friend with the following description, “When your first time having sex was rape.”

In denying the Monmouth prosecutor's motion, the trial court noted that the boy was “college-bound,” from a “good family” and “an Eagle Scout.” Of the youth's text, he said, it was “just a 16-year-old kid saying stupid crap to his friends.”

The appellate court's opinion included other parts of the G.M.C. transcript. The trial judge said: “… [T]here have been some, not many, but some cases of sexual assault involving juveniles which in my mind absolutely were the traditional case of rape, all right, where there were generally two or more generally males involved, either at gunpoint or weapon, clearly manhandling a person into . . . an area where . . . there was nobody around, sometime in an abandon[ed] house, sometimes in an abandon[ed] shed, shack, and just simply taking advantage of the person as well as beating the person, threatening the person.” The judge's definition of a “traditional case” is a variant of what a U.S. congressman once referred to as a “legitimate rape.”

The facts alleged in E.R.M. were no less egregious. The 16-year old defendant was claimed to have waited for a 12-year-old girl to return from summer school to the home their families shared, put on a condom and then held her down while he forcibly penetrated her. The record reflects that the 12-year old told him “no,” and repeatedly tried to push him off as he lay on top of her. She also tried biting him and asking him to stop, but he refused. As a result, she lost her virginity, began to bleed and eventually succeeded in pushing the 16-year old away and running to a nearby friend's home.

In denying the prosecutor's motion, the Middlesex judge found the alleged sexual assault was not “an especially heinous or cruel offense beyond the elements of the crimes that the waiver statute intends to target.” She further opined that a teenage boy carrying a condom did not rise to the level of being “calculated” or “premeditated,” as the prosecutors had argued.

Nor did she find that the act was carried out in an especially heinous manner, as the force used by the juvenile, said she, was not excessive or beyond what is required by the law and the victim did not suffer any physical or emotional injuries as a result, other than the ramifications of losing her virginity, which the court did not find to be especially serious harm in this case.

However well-intentioned these trial judges believed themselves to be, their words are from another age, an age dramatically less just to women, an age whose harms we are trying to ameliorate. We understand there is a public call from some quarters to remove them from the bench, and one of the judges has voluntarily ended his recall duties. Although we condemn their words, we do not support involuntary removal for such. Judges should have independence sufficient to make unpopular decisions, even decisions patently wrong, without fear that doing so will cause them to forfeit their robes. Their independence is something the state bar should defend vigorously.

These cases were given broad media coverage not because the trial judges used the wrong standard to decide the waiver motions, but rather because they were perceived as examples that charges of sexual offenses against women are not taken seriously and that perpetrators, once determined to be so, are treated too gingerly by the courts. Further, the stated rationale expressed by the Monmouth County judge to support his ruling against the motion reinforced the notion that there is a harsher standard for punishing less-educated and products of broken homes than for young people from better-advantaged backgrounds.

Rather than burying these decisions in the bin of unpublished appellate opinions, they should be published and used as teaching moments. Surely, publication falls well within the purview of R.1:36-2(d)(6) because the opinions represent issues of continuing public interest and importance.

The public should see that the courts are doing their job, exposing, correcting and learning from discovered errors. Judges should understand that certain norms of conduct, once winked at, are no longer accepted. Judges whose motherboards were frozen at a time when relations between the sexes were very different will have to make adjustments. Finally, young people will learn that while the law may cut them some slack, that slack has its limits.

Editorial Board members Virginia Long and Edwin Stern recused from this editorial.