Juvenile Law Center

Juvenile and Criminal Justice

B.H. v. Commonwealth of Kentucky

B.H., an eighth grader, had consensual sexual contact with a peer in seventh grade. The two also exchanged sexually explicit text messages. Only B.H. was charged with sexual misconduct and viewing or possessing matter portraying a sexual performance by a minor and was eventually found delinquent of these charges.

Juvenile Law Center and the Children’s Law Center filed an amicus brief supporting B.H.’s appeal to the Kentucky Supreme Court. Our brief argued that criminalizing consensual sexual behavior between two teens who are both below the age of consent is inconsistent with Kentucky law and established public policy. Additionally, it fails to consider normal adolescent exploration of sexual identity and sexual relationships, and does nothing to further the state’s interest in protecting youth. Both the legislative history of Kentucky’s sexual misconduct statute and the case law and statutes of several other jurisdictions disfavor adjudicating B.H. delinquent under the sexual misconduct and child pornography statutes. Finally, we argued that B.H.’s mandatory sex offender treatment for consensual sexual behavior is ineffective and potentially harmful to his well-being.

The Supreme Court of Kentucky concluded that all rights to appeal were waived when B.H. entered into his guilty plea unconditionally and therefore, the Court declined to address the merits of the case. However, the concurring opinion very poignantly addressed “two agonizing concerns” raised by the instant case: (1) despite numerous appeals and years of litigation, the appeal was never previously challenged because of the guilty plea, and (2) the unsettling selective prosecution of one child over another when both were consensual participants in the criminal act.


Case Number
Amicus Curiae
August 13, 2014
Supreme Court of Kentucky
State of Origin

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