Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1991 No. 23 -
Attorney General Ken Eikenberry


RCW 70.24.340 provides for mandatory HIV testing and counseling for persons convicted of a sexual offense under chapter 9A.44 RCW.  A juvenile is not convicted of a sexual offense under chapter 9A.44 RCW.  Rather, a juvenile is adjudge to have committed an offense under the Juvenile Justice Act, RCW 13.40.0357 (Schedule A).  Therefore, the testing and counseling requirement in RCW 70.24.340 does not apply to juveniles adjudged to have committed sexual offenses pursuant to the Juvenile Justice Act.

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                                                                     July 8, 1991

Honorable Phil Talmadge
State Senator, District 34
432 John A. Cherberg Building
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1991 No. 23

Dear Senator Talmadge:

            By letter previously acknowledged, you requested an opinion on the following paraphrased question:

            Do the provisions in RCW 70.24.340 pertaining to mandatory HIV testing, pretest counseling, and posttest counseling apply to juveniles adjudged to have committed offenses that would constitute sexual offense convictions under chapter 9A.44 RCW if committed by an adult?

            We answer you question in the negative for the reasons set forth below.

             [[Orig. Op. Page 2]]


            RCW 70.24.340 provides in part:

                        (1)  Local health departments authorized under this chapter shall conduct or cause to be conducted pretest counseling, HIV testing, and posttest counseling of all persons:

                        (a)Convicted of a sexual offense under chapter 9A.44 RCW;

                       . . . .

(Emphasis added.)

            Chapter 9A.44 RCW lists the following sexual offenses:  rape in the first, second, or third degree (RCW 9A.44.040, [9A.44].050, [9A.44].060); rape of a child in the first, second, or third degree (RCW 9A.44.073, [9A.44].76, [9A.44].079); child molestation in the first, second, or third degree (RCW 9A.44.083, [9A.44].086, [9A.44].089); sexual misconduct with a minor in the first and second degree (RCW 9A.44.093, [9A.44].096); and indecent liberties (RCW 9A.44.100).  Each of these sexual offenses is made either a felony or gross misdemeanor under the statutes cited above.  RCW 9A.04.040(1) in turn denominates felonies and gross misdemeanors as two classes of crimes.

            Can a juvenile be "convicted of a sexual offense [i.e., a crime] under chapter 9A.44 RCW"?  We believe the answer is no.  Juveniles are tried for alleged offenses pursuant to the Juvenile Justice Act (chapter 13.04 RCW) and the Basic Juvenile Court Act (chapter 13.04 RCW).  RCW 13.40.020(15) defines an "offense" as "an act designated a violation or a crimeif committed by an adult. . . ." (Emphasis added.)  RCW 13.04.240 further provides:  "An order of court adjudging a child [anyone under 18 years] delinquent or dependent . . .shall in no case be deemed a conviction of crime."  (Emphasis added.)

            The distinction between an adjudication that a juvenile has committed an offense and an adult conviction of crime is not merely semantic.  InState v. Schaaf, 109 Wn.2d 1, 7-8, 743 P.2d 240 (1987), the State Supreme Court emphasized:

                        The fact that juveniles are accountable for criminal behavior does not erase the differences between adult and juvenile accountability.  The penalty, rather than the criminal act committed, is the factor that distinguishes the juvenile code from the adult criminal justice system. . . .

             [[Orig. Op. Page 3]]

                       . . . .

                       . . . In short, under the present state of the law no amount of analogizing between adult and juvenile offenders serves to make the two classes equally accountable for their criminal actions.

(Footnotes omitted.)  Hence, while commission of a sexual offense by an adult constitutes a conviction of crime under chapter 9A.44 RCW, the commission of such an offense by a juvenile is adjudicated as a "juvenile offense" under the Juvenile Justice Act.  See RCW 13.40.0357 (Schedule A).

            The State Supreme Court, inIn re Frederick, 93 Wn.2d 28, 604 P.2d 953 (1980), considered whether a juvenile could be found guilty of first-degree escape under former RCW 9A.76.110(1).  At issue was whether the juvenile, who had previously pleaded guilty in juvenile court to a charge of second-degree burglary, was being "detained pursuant to a conviction of a felony"‑-an essential element of first-degree escape under the former statute.  Relying upon RCW 13.04.240 and RCW 13.40.020(15), the court held that "a juvenile has not committed a crime, including a felony, when he has committed an offense, 'an act designated as a crimeif committed by an adult,'" (Emphasis in original).  Frederick, 93 Wn.2d at 30.  Accordingly, the court concluded that a juvenile could not be guilty of first-degree escape.

            In AGO 1987 No. 28 (copy attached), this office relied upon Frederick in interpreting the statutes pertaining to unlawful possession of a pistol RCW 9.41.040(1) provides that a person who has been "convicted . . . of a crime of violence or of a felony" may not lawfully possess a pistol.  We concluded that the prohibition did not apply to a person who had been adjudged, in juvenile court proceedings, to have committed an offense that would have been a crime of violence or a felony if committed by an adult.

            We noted, in AGO 1987 No. 28, that the courts in limited circumstances have treated juvenile offenses as similar to crimes.  See State v. Bird, 95 Wn.2d 83, 622 P.2d 1262 (1980); State v. Norton, 25 Wn. App. 377, 606 P.2d 714 (1980).  However, in those cases the courts allowed the benefits of a statute to be extended to juveniles, applying the "rule of lenity" which holds that ambiguous criminal statutes be construed in the defendant's favor.  See Bird, 95 Wn.2d at 90.  In Bird, the court thus permitted the suspended sentence statute to be applied to a disposition for a juvenile offense.  InNorton, the court permitted the compromise of misdemeanors statute to be so applied.

             [[Orig. Op. Page 4]]

            Where a statute would impose a disability or mandatory requirement, rather than a benefit, on a juvenile, the situation is analogous to that inFrederick.  Hence, we concluded in AGO 1987 No. 28 that the statutes pertaining to unlawful possession of a pistol did not apply to those found to have committed juvenile offenses.

            Returning then to RCW 70.24.340, which mandates HIV testing and counseling for those "convicted of a sexual offense under chapter 9A.44 RCW", we must conclude that it likewise does not apply to juvenile offenses.  Whether or not such mandatory testing may have a societal benefit, it is unquestionably mandatory only for those who are "convicted" of sexual offenses under chapter 9A.44 RCW, and an adjudication under the Juvenile Justice Act is not a conviction.  The Legislature has not indicated an intent to extend the HIV testing requirement to those who are adjudged to be juvenile offenders; and while the Legislature is, of course, free to do so in the future, we cannot read such intent into the statute as it is presently written.1/

             We trust that you will find the foregoing to be of assistance.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   *** 

1/We note that following the decision in In re Frederick, 93 Wn.2d, the Legislature amended RCW 9A.76.110 so that escape in the first degree would apply to persons "being detained pursuant to a conviction of a felony or an equivalent juvenile offense." Laws of 1982, 1st Ex. Sess., ch. 47, § 23, p. 1330 (emphasis in original).  A similar amendment to RCW 70.24.340 could be made to indicate a like intent to extend mandatory HIV testing and counseling to those found to have committed equivalent juvenile offenses.