Tuesday, November 29, 2011

Just Us!

When I hear about this:

A 6-year-old Grant County boy has been accused of first-degree sexual assault after playing "doctor" with two 5-year-old friends.
And then consider that we have the highest percentage of our population in prison of any country in the world, I don't think this case is simply a problem of overzealous prosecution or "freaking out" about kids.

First, because it doesn't show up in the linked article, one relevant fact about why the "inappropriate touching" occurred:

"D" is 6-year-old child who previous to the alleged criminal act in issue, had medical issues that necessitated rectal examinations by medical personnel.
"D" is the child being charged with a felony. The girl involved told authorities they were playing "butt doctor," and no penetration occurred.

There is a political aspect to this case (plenty of info on that in the petition and elsewhere); but what interests me is the idea of criminalizing the behavior of others.

The parents of "D" are outraged at a six-year old being treated like a criminal, and well they should be. But who thinks a criminal prosecution of a six-year old is appropriate under any circumstances, and why? Well, apparently, people with the power to prosecute in a country where incarceration has increased 500% over the past 30 years (roughly the same time period that wages have stagnated for 80% of the population while rising for 20% of the population. Coincidence?) We have turned to criminal prosecutions to cure a variety of ills, so it's almost no surprise we would now criminalize "playing doctor" between small children.

Does it seem extreme to link this stupid case to the problem of incarceration? Well, some of this story is of a piece with the national story about prosecutions. Prosecutors love convictions, and not just because they hate criminals. Prosecutors, as this story amply shows, are political animals (not all politicians make sensible decisions in the name of politics). And this prosecutor, like many, obviously doesn't yet want to admit this prosecution is a mistake, or that a 6 year old boy is not an adult.

[L]egal scholars looking at the issue suggest that prosecutors’ concerns about their political future and a culture that values winning over justice also come into play. “They are attached to their convictions,” Garrett says, “and they don’t want to see their work called into question.”
That's from a NYTimes story about convictions being overturned by DNA evidence, and what lengths prosecutors will go to in order to protect their records. Prosecutors are political animals, and in a culture that values not just winning, but criminalizing behavior and punishing people with prison sentences, isn't it just a matter of time until that attitude is applied to children?

This prosecution is vile, rancid, egregious, and indefensible. As the attorneys for the parents point out:

"[The experts say] a 6-year-old child is unable to intellectually and emotionally associate sexual gratification with the act that D has been accused of committing," Cooper said....
And as they note in their lawsuit, a six year old boy is simply incapable of forming the mens rea (guilty intent, basically) necessary to charge him with a felony. That is simply hornbook law: without the mens rea, the act is not criminal. This is the basis for the "insanity defense" in some crimes: if the defendant didn't have the mental capability to form a criminal intent (if, for example, in a delusional state the defendant was killing in self-defense), there is no crime. Of course, for murder suspects who are "not guilty by reason of insanity," there is treatment instead of jail time. But six-year olds are not guilty by reason of the fact they are incapable of forming criminal intent, at least as regards a crime of sexual assault. This is why children are not charged like adults, or treated criminally like adults. It is absurd to charge a child with such an offense. But is it of a piece with the society we've become in the past 30 years? Do we feel so out of control that we are mad to be in control of someone, anyone? Chris Hayes opined over the weekend that if we see a loss of the "American Dream" (the idea that we will be better off than our parents), our politics would go bonkers.

I'm still wondering why he said: "If".


  1. Is part of the issue here our society's obsession with numerical measures of productivity? A prosecutor who wants to "do a good job" knows that the definition of "doing a good job" is the # of convictions. But also a professor who wants tenure knows that she has to have at least x # of papers published in 5 years. And according to "education reformers", a teacher who wants his salary to keep up with the real cost of living and supporting a growing family (during the years in which said teacher's kids will require more food, money saved for college, etc) should be able to demonstrate that the average test scores of his students are improving at a certain rate.

    Are the same forces in our society that induce teachers to "fix" their students' scores on standardized tests (or, in my generation, where teachers at the "best" elementary school in the district maintained that school's reputation by fixing kids' art projects, etc. so they'd have nice things to display at open house) those that result in prosecutions of 6 year-olds for playing doctor?

    On the other hand, where our system is supposed to work by manipulating people's desires to be more successful ("ambition must be made to counteract ambition"), somehow it doesn't quite work out that way ... prosecutors somehow are incentivized to prosecute a six year old for playing doctor but not bankers who foreclose on active duty military personnel, which action is clearly illegal?

  2. On the other hand, where our system is supposed to work by manipulating people's desires to be more successful ("ambition must be made to counteract ambition"), somehow it doesn't quite work out that way ... prosecutors somehow are incentivized to prosecute a six year old for playing doctor but not bankers who foreclose on active duty military personnel, which action is clearly illegal?

    There is a certain amount of resistance in the system, isn't there? Bankers have clout; 6 year olds don't.

    What amazes me in this case is the judge issuing a gag order on the parents on the grounds they will influence the child's testimony, even as the prosecutor treats the child as an adult (in the legal sense). So the child is guilty of a felony, but the parents are being treated as unfit parents who may lose their parental rights (the prosecutor has threatened as much). I would expect the courts to be the vanguard against such abuse, but whether the Federal Court will even intervene (the parents plea for relief is lodged there) is an open question.

    How the hell did we get this screwed up?

  3. The prosecution of the 6 year old for 'playing doctor' is insane. The prosecutor and the judge need to be examined by a psychiatrist.

    And who needs an expert to tell them that a six year old is incapable of committing a felony? I read your post when you posted on Tuesday, but I was left speechless at the time.

  4. When I left my comment here, I had not yet read the comments at AmericaBlog. I see that I'm not the only person thinking that the process is insane.

    I was a child once (Believe it or not!); I had siblings and friends. I have three children who had friends. I have six grandchildren who have friends. Sex play happens. It's behavior that you move children away from, but it is part of the reality of childhood.

    I can't help but imagine that certain zealous citizens may next advocate for laws against teenage masturbation, and certain ambitious prosecutors may be only too eager to prosecute the transgressors. We are going crazy in this country.

  5. Mimi-

    I'm still speechless. The entire idea of prosecuting a 6 year old for a felony is insane, even if he had picked up a gun and shot somebody.

    This makes no sense at all.