Request By:
Honorable R. Hughes Walker
General Counsel
Cabinet for Human Resources
Fourth Floor - West
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; David M. Lewis, Assistant Attorney General, Special Prosecutions Division, 909 Leawood Drive, Frankfort, Kentucky 40601
You have provided this office with information concerning the use of juvenile informants as undercover agents in an effort to curb a high incidence of violence and other illegal activity related to adult homosexual acts with juveniles.
The relevant information provided was that the Lexington Police Department had wired a juvenile informant with a surreptitious monitoring device on his person and sent him to an area where it was expected that he would be solicited for a sexual act.
Precautions taken by the police included: (1) consent by both the juvenile and his parents; (2) use of a juvenile accustomed to the environment of the investigative operation (in this respect, the child had previously performed as a prostitute for homosexuals) ; and (3) the juvenile was told not to engage in sexual activity with any suspect in the investigation.
You related that the police had obtained legal advice concerning use of the juvenile.
You further stated that on the second day of the investigation, a second juvenile accompanied the informant when contact was made with the suspect. The second juvenile was not informed about the monitoring device but was aware of the investigation and was cautioned not to commit any unlawful acts.
The two juveniles contacted the suspect and upon accompanying him to his residence, a sexual act occurred between the second juvenile and the suspect.
Upon becoming aware that a sexual act was occurring, the police surveillance team proceeded to the residence approximately 4 to 8 minutes after that discovery and stopped the sexual activity by arresting the suspect.
After submitting these facts, you have requested a legal opinion on the following questions.
You first ask: Whether the use of juveniles in undercover police investigations by the Lexington Police Department is within the purview of KRS 199.335(2) and KRS 199.011(6).
The answer is yes. The answer may be qualified to the extent that the factual situation addresses a grey area where the possibility of harm to the child is a prime factor.
Your second question is as follows: Whether any child abuse or sexual abuse occurred against any child as a result of the May 4, 1984, Lexington Police Department investigation and undercover surveillance of adult homosexual acts with juveniles.
The facts indicated that one of these juveniles was sexually abused by the suspect.
Finally, you ask if the City of Lexington's policy of using juvenile informants as undercover agents in police investigations violates the spirit of any of the provisions of the Child Protective Acts.
It is clear that the legislative intent embodied in KRS 199 et seq (and KRS 208 et seq) provides, on a broad scale, for the protection of children. Not only does this statute provide for reporting actual injury or harm to the child but is so designed that it is to be a preventative measure triggered whenever there is "threatened" harm to the child.
Possible harm to the informant would be of two sources. First, the sexual act may be attempted or completed, as occurred in this case.
Secondly, discovery of the informant's role could create a great risk of physical harm to the child. The risk of discovery probably increases with surreptitious wiring of the child, especially in a situation where he may likely be touched or partially disrobed, or both. As has been demonstrated by this factual situation, a lapse time can develop between notice of the danger and arrival of the police. In that period of time, 4 to 8 minutes, a suspect could wreck havoc on the juvenile informant.
For this reason, the use of juvenile informants in the factual situation already mentioned places such children in the way of harm or its potential and therefore could constitute abuse to that child.
I trust this answers your questions and apologize for the length of time in answering your inquiries. I enclose some opinions which might also assist.