Monday, November 28, 2011

Another Case for Prosecutorial Misconduct:

 Reason Magazine has the story of Parents who have sued a Wisconsin D.A. for charging their 6-year-old son with a felony after he played doctor with a 5-Year-Old Girl.  Might there be some political overtones:

According to the complaint (PDF), the girl is "the daughter of a well-known political figure in Grant County," and her brother, who is the same age, also was involved in playing doctor but was not charged. In addition to Riniker, the lawsuit names as defendants retired Grant County Sheriff's Sgt. James Kopp and Jan Moravits, an investigator with Grant County Social Services "whose regional the political figure's wife's sister-in-law"—i.e., the aunt of the alleged victim. 
Although the boy, now 7, is too young to be prosecuted or named in a juvenile delinquency petitition, reports, county officials are using the felony charge to force his parents into accepting "protection or services" for him. The lawsuit says that once he turns 18, he will be listed as a sex offender.

Seriously, I am sorry, but this kind of crap is just plain stupid.  Back in my childhood at age 6 or 7, if I had played doctor with a 5 year old neighbor, my parents would have gotten a call, I would have gotten a talking to and that would have been the end of that.

But what is criminally tragic is that this boy, for doing something that is relatively innocent and completely normal, could be branded a sex offender for LIFE for doing something when he was 6.

Surely there is something more important for this D.A.(Grant County, Wisconsin, District Attorney Lisa Riniker) to be doing.  No community is so devoid of even marginally criminal activity or DUI's that a case of "playing doctor" has to be ratcheted up into a criminal case.

I don't practice criminal law, but I do vaguely recall from my criminal law course  that part of a criminal case is that there has to be an intent to commit a crime (the mens rea), the intent to do wrong.  That is something I am pretty confident in saying that this boy didn't have.

Why the Court has not tossed the criminal case out on it ear is shocking to me.

Oh, by the way, the D.A. was able to get a gag order that prevents the parents (but thankfully not their lawyers) from talking about the case.
The station (WISC-TV) spoke instead with their lawyers, who are not covered by the order:
"That behavior by a prosecutor is outrageous," said Christopher Cooper, an attorney for the boy's parents.... 
"She [Riniker] bypassed the parents and sent a 6-year-old boy a summons, on which is a threat that the 6-year-old will go to jail for failure to appear," Cooper said. 
The attorneys said they have sought the opinion of many experts who said that children "playing doctor" is not a sex crime. 
"[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.... 
Repeated calls to Riniker and an attorney for [her] and two co-defendants have gone unanswered since Friday, WISC-TV reported.

Is this a case for prosecutorial misconduct?  Maybe, but what is more interesting is the political link.  I am sure almost all of this case activity is going to be conducted under seal given the fact that kids are involved, but D.A. Riniker's lame excuse "that that legislature didn't put an age limit on sexual assault" is no excuse for not using a healthy dose of common sense.  If she was pressured by other politicians, there is going to be some really interesting things coming out of this case.

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Anonymous said...

From what I have read, the incident took place at the young girl's home, or at least in a place where the mother of the girl was responsible for the safety of all three children. Is there justification for a suit against the mother of the girl for negligence? If the mother witnessed the event, why did she not intervene? Should this mother be allowed to have contact with her own children if she allows this type of “heinous” behavior to take place?

Matt Johnston said...

Could there be a negligence claim against the mother? Perhaps, but that is a civil claim, not a criminal claim. The Local D.A. pursued a CRIMINAL case against a 6 (now 7) year old.

However, I would note that under most notions of negligence, you have to establish first that the person had a duty to prevent the "harm," which leads to the question of whether there is a harm at issue here. I am not convinced that there is.

Finally, is pursuing a negligence claim really a good thing? Even as a lawyer, I would say no. It is not a worthwhile use of the parents' time and money, and ultimately not good for the kids in this case.

What ever happened to neighbors just talking it over? Why do we need a negligence suit?