A judge is being admonished by an appeals court for saying a 16-year-old boy should get leniency after he allegedly sent a video of himself penetrating a heavily intoxicated girl with the message, “When your first time having sex was rape.”

Last year, New Jersey Superior Court Judge James Troiano denied prosecutors’ request to try the teen as an adult. He argued that the act might not be rape, but rather sexual assault and pointed out that the boy in question, identified in court documents as G.M.C., had good grades and was an Eagle Scout.