July 17, 2014 By Stephen Klarich

An Arizona kindergartner was on a playground at his elementary school when another student told him to pull his pants down. The child quickly agreed, and exposed himself to several of his fellow students and teachers.

Kindergartner capable of committing sexual misconduct?
Is a kindergartner capable of committing sexual misconduct?

The elementary school took this seriously. Eric Lopez was quickly taken to the principal’s office, where he was given detention and was accused of committing “sexual misconduct.” School officials forced the child to sign a document admitting he committed sexual misconduct. His mother was not there for the meeting, and she was shocked to learn her son was forced to admit to committing sexual misconduct. 1 

She has since tried to appeal the record in her son’s permanent file. She says he does not deserve to be accused of committing sexual misconduct because he is not a “sexualized minor.2

In Wisconsin, another child faces a first-degree sexual assault charge. Three children were playing “Doctor,” when one child touched a female companion “inappropriately.” 3 According to a the Grant County District Attorney, he was exhibiting felonious criminal behavior.

Experts called in by the defense at trial argued that the child’s actions were part of “normal childhood behavior.”

Should Children Be Penalized for Committing Sex Crimes?

Laws that criminalize sex crimes serve two important purposes:

  • Preserving public safety; and
  • Keeping offenders who could commit these crimes again off the streets.

Does punishing five and six-year-olds for alleged “sex crimes” accomplish either of these purposes? At age five, Lopez dropped his pants at the playground because a playmate told him to. This sounds like the most innocent act that could ever be labeled as “sexual misconduct.”

In California, children under the age of 14 are considered “incapable of committing a crime” (California Penal Code Section 26). Lopez was forced by the school’s staff to admit to committing sexual misconduct by signing a document. A five-year-old has just begun learning how to read, much less understand vocabulary such as “sexual misconduct.” To have a minor—more specifically, a child as young as five—admit to such an act without understanding what it means, contradicts the goals of our laws.

Our criminal justice system makes a clear distinction between adult and juvenile crimes. Juveniles are not subject to the typical jury trials that alleged adult criminals are subject to. Their crimes do not typically receive the harsher adult penalties.

What Wallin & Klarich Thinks

The Wallin & Klarich Partners will be there when you call
We will be there when you call.

The Arizona school disregarded the child’s rights by forcing him to sign a document admitting to committing sexual misconduct without a parent present. In any other situation, a minor would not be asked to sign a formal document without the presence of a parent or guardian. Does a child as young as five or six even comprehend the severity of sexual misconduct?

By most accounts, a child at this age is just barely understanding how to react to nudity. He or she is also just developing a sense of being a “boy” or a “girl.” However, they are still exploring their bodies, and still very curious. 4 Criminalizing a child’s curiosity places an unfair burden on our children and our concerned parents. While minors can still rightfully be punished for sexual misconduct, extending these penalties to kindergarteners and preschoolers seems extreme and unwarranted.

What do you think about this case? Should children be free from being accused of sexual misconduct? Is it for school officials to make minors admit to committing a crime without the presence of a parent or an attorney?

Please share your thoughts in the comments below.

1. [http://www.azfamily.com/news/Kingergartner-accused-of-sexual-misconduct-264689461.html]

2. [Id.]

3. [http://californiarsol.org/2011/12/6-year-old-charged-with-sexual-assault/]

4. [http://kidshealth.org/parent/growth/sexual_health/development.html#]

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