Affirmation Regarding The Confusion Over Sexual Predators

Yesterday I wrote a post on the confusion, dissonance and exploitation that is inherent in the way we are addressing sexual predators. While yesterday's post mostly dealt with the way NBC, Dateline and the "To Catch A Predator" series of reports are exploiting the public, doing a disservice to genuine victims of sexual exploitation of all kinds, violating journalistic ethics, and making a profit by exposing these matters in an inappropriate way, it also dealt with the inconsistencies in our history, culture and legal systems in terms of defining sexual abuse, sexual predators and the means by which we intervene in these matters.

Today we find a story that outlines the efforts of a middle school and the local police to prosecute two 13-year-old boys as sexual predators for slapping the buttocks of girls in school. While we can all agree that slapping the buttocks of young pre-teen and teen girls that are entering puberty is inappropriate and constitutes harassment, one has to wonder if the schools, the police, the parents and the prosecutors in these cases have had too much to drink.

Yes, the behavior is wrong... but does it reach the level of a sex crime? Does this behavior by kids so young warrant locking the boys in a juvenile detention center for five days and proffering felony charges? Even though these felony charges have been dropped, was there grounds for smearing a label of sexual predator and attaching the stigma of that label onto children that have not the cognitive capacity (c.f. Scientific American reports Is the Teen Brain Too Rational? and The Teen Brain, Hard at Work) to determine if their behavior is risky to themselves or others, or even appropriate by adult definitions and understanding. What we do not understand about pre-adolescent and adolescent development and behavior could fill several tomes.

This report affirms my posted notions that we really do not know what the hell we are doing when it comes to our sexuality, our children's needs, defining sexual predatory behaviors, adolescence or social norms.

Boys Face Trial Over Slapping Charges

Two middle-school students in Oregon are facing possible time in a juvenile jail and could have to register as sex offenders for smacking girls on the rear end at school.

Cory Mashburn and Ryan Cornelison, both 13, were arrested in February after they were caught in the halls of Patton Middle School, in McMinnville, Ore., slapping girls on the rear end. Mashburn told ABC News in a phone interview that this was a common way of saying hello practiced by lots of kids at the school, akin to a secret handshake.

The boys spent five days in a juvenile detention facility and were charged with several counts of felony sex abuse for what they and their parents said was merely inappropriate but not criminal behavior.

Common or not, we can all agree that this is an inappropriate way of greeting or communicating in the social sense among young teens. But given its social acceptance among this group of teens, one would think that some re-direction, correction and education on the issues would have been more appropriate than hauling these kids off to a juvenile detention center and keeping them for five days... never mind charging them with sex crimes at the felony level.

The local district attorney has since backed off -- the felony charges have been dropped and the district attorney said probation would be an appropriate punishment. The Mashburns' lawyer said prosecutors offered Cory a plea bargain that would not require him to register as a sex offender, which the family plans to reject.

But the boys, if convicted at an Aug. 20 trial, still face the possibility of some jail time or registering for life as sex offenders.

The boys' families and lawyers said even sentencing them to probation would turn admittedly inappropriate but not uncommon juvenile rowdiness into a crime. If they are convicted of any of the misdemeanor charges against them, they would have to register as sex offenders.

It's devastating," said Mark Lawrence, Cory Mashburn's lawyer. "To be a registered sex offender is to be designated as the most loathed in our society. These are young boys with bright futures, and the brightness of those futures would be over."

I am not sure that slapping someone on the buttocks while they are fully clothed and without an obvious sexual context could ever rise to the level of a sex crime. But if the prosecution continues on this track, these kids will be marked for life as sexual predators.

This is similar to the numerous cases where people have been arrested and prosecuted as sexual predators for "indecent exposure" instead of public urination. As I was growing up there was a tradition that if your kids had to pee while on a long road trip, Good Old Dad would pull over to the breakdown lane, put on his flashers and instruct you to run to the edge of the tree line to do your business. Sometimes Good Old Dad--and on a rare occasion even Good Old Mom--would make the same trip to the trees for the same reason. Today this could be a sex crime... Go figure!

Perhaps it's time to consider changing the charge to simple assault, removing the sex offender stigma from the case altogether? Or perhaps it is time to consider a diversion approach that would drop the charges if these boys were to participate in some form of "sexual harassment" seminar, and then do a couple of presentations at their school on what they learned?

Cory Mashburn said he and Ryan Cornelison slapped each others' and other kids' bottoms every Friday. "Lots of kids at school do that," he said.

I can't speak for Mashburn and Cornelison, but when I was their age I learned to congratulate my team mates in football and basketball by slapping them on their backside. Even our coaches would do this type of thing when they sent us in to substitute or bring a new play call to the quarterback or team captain. I think we have enough of an established norm within the context of this middle school to question the judgment of the school officials, the police and the prosecutors.

Cory and Ryan were brought to the principal's office Feb. 22, where they were questioned by school officials and a police officer. They were arrested that day and taken in handcuffs to a juvenile detention facility.

Court papers said the boys touched the buttocks of several girls, some of whom said this made them uncomfortable. The papers also said Cory touched a girl's breasts. But police reports filed with the court said other students, both boys and girls, slapped each other on the bottom.

"It's like a handshake we do," one girl said, according to the police report.

The boys were initially charged with five counts of felony sexual abuse. At a court hearing, two of the girls recanted, saying they never felt threatened or inappropriately touched by the boys. The judge released the boys but barred them from returning to school and required that they be under constant adult supervision.

District Attorney Bradley Berry has since dismissed the felony counts. The boys face 10 misdemeanor charges of harassment and sexual abuse. They face a maximum of up to one year in a juvenile jail on each count, though Berry said there was no way the boys would ever serve that much time.

"An appropriate sentence would be probation," he said. "These are minor misdemeanor charges that reflect repeated contact against multiple victims. We never intended for them to get a long time in detention."

"We're not seeking major penalties," he said. "We're seeking change in conduct."

The statement of the district attorney doesn't seem to ring true. If he were genuinely interested in changing conduct and behavior, especially when there is a willing and cooperative set of parents that want their children to understand the inappropriateness of these actions, then there would be some effort on his part to seek out some alternatives to prosecution under sexual offender charges. But this seems to be another case of sensationalizing a case to promote the image of the office or the person of the district attorney. And if the DA did not intend for a long time in detention, why weren't these kids released to their parents "ROR" as most first-time juvenile offenders are released? Why were they kept in detention for five days? I love it when we are lied to in such obvious ways, don't you?

The arrests, critics said, reflect a trend toward criminalizing adolescent sexual behavior. Between 1998 and 2002, juvenile arrests for sex offenses other than rape or prostitution rose 9 percent -- the only kind of juvenile arrests that rose during that time, according to the Bureau of Justice Statistics.

"More and more, they are criminalizing normal adolescent or preadolescent behavior," said Chuck Aron, co-chairman of the National Association of Criminal Defense Lawyers juvenile justice committee.

This is in keeping with my observations about the NBC, Dateline, "Predator" series and Perverted Justice approach. We are caught in a pattern of sensationalizing and exaggerating the events to garner not only attention to the genuine problems of sexual abuse and assault, but for profit or political gain. And, just as I wrote in yesterday's post, we cannot seem to get it straight when dealing with adolescent sexuality... or as we see in this case, what might not be sexuality at all, but a group of kids acting in a way that they do not perceive as inappropriate, but seems to stimulate the dirty little minds of school administrators and the local law enforcement folks.

Even probation, the Mashburns and their attorney said, would be too severe a punishment.

Julie McFarlane, a supervising attorney at the Juvenile Rights Project in Portland, Ore., said, "Probation for a sex offense is very difficult thing, and there's a pretty high failure rate." Failing to meet the terms of probation could mean the boys would be sent to jail.

Depending on the terms of probation, it's likely that the boys would not be allowed to have sexual contact with anyone or any contact with younger children, McFarlane said. For Cory Mashburn, that would mean he couldn't be left alone with his younger siblings.

In our efforts to genuinely identify and arrest those that prey on our children, we have cast a net so large and so fine that we are now criminalizing natural human behaviors, including those behaviors that need to be curtailed and set straight. Certainly we can agree that the method of "handshaking" chosen by these boys and others in this middle school is inappropriate, but approaching it in the manner chosen by these authorities is blown way out of proportion. But this is in keeping with an observation I made in yesterday's post when I noted that the way people react to these issues is often more damaging than the original incidents.

Berry, the district attorney, said the victims -- the girls who were touched -- were being overlooked. "What's been lost in this whole thing are the victims, who have been pressured enormously by these boys' friends," he said.

I disagree. I do not think these girls are being neglected in this process... at least not by anyone with a lick of sense. But perhaps the DA should ask if his own actions are ignoring the needs of these girls? There is a stigma of being a sexual victim as well as a stigma attached to being a "squealer" in the school setting. Once again we have to ask if the DA really understands the issues and whether there is an alternative approach that would validate the girls, acknowledge the inappropriateness of the boys' actions, send a message to all the children in school, alert the school authorities to an issue that they have been ignoring, and provide for the proverbial "win-win" outcome?