Sex Offense Hysteria, Common Law Prosecution of Children and Related Judicial Travesties

Grant County District Attorney Lisa Riniker

Last week, the eminent Jacob Sullum of Reason magazine posted about District Attorney in Grant County, Wisconsin, who has pressed first-degree sexual assault charges on a six year old boy for playing “doctor” with one of the neighbourhood girls.

Justifiably, the parents of the boy are pissed, and are suing the DA, Lisa Riniker for pressing these charges. The entire twenty-five page document can be viewed here (PDF).

These are the salient allegations of the case:

  • There were three children present. Two were a brother and sister combo, and the third, (referred to as “D” in the document) is the boy facing sexual assault charges. The boys inserted their fingers into the anal cavity of the girl, and the other boy is alleged to have done the same to D.
  • Only D is facing charges.
  • The entire tawdry episode is alleged to have been tainted by investigative malpractice:
She [the girl] is the daughter of a well-known political figure in Grant County, Wisconsin. […] D was investigated by Defendant Moravits of Grant County Social Services, whose regional supervisor (Ms. L) is the political figure’s wife’s sister-in-law, and is defined by the political figure (and by Ms. L) as the aunt of the two aforementioned 5 year-old children (of the political figure). Moravits wrote a scathing report critical of “D” calling for his prosecution and assuring the parents of D that in Grant County, Wisconsin a 6 year-old is and was not immune to criminal prosecution.
  • The DA (Riniker) has been sending documents to the boy, and not his parents. These include a court summons and the reminder that he could go to prison if he fails to show.
  • D will be a registered sex offender when he turns 18.
  • The plaintiffs “allege violations of their U.S. 1st, 4th, 5th, 6th and 14th Amendment Constitutional rights.”
  • WISC-TV has reported that Riniker has obtained a gag order, which essentially prevents the parents of D from speaking to the media.
  • Riniker has also threatened to remove D from his parents’ custody.
So…dear God, where does one begin with such a travesty?
The first is that by literally any definition, D was incapable of committing a crime. Indeed, the history of common law illustrates this very, very clearly.
Here’s Sir William Blackstone on the subject:
FIRST, we will consider the case of infancy, or nonage; which is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever. [My italics.] What the age of discretion is, in various nations is matter of some variety. The civil law distinguished the age of minors, or those under twenty five years old, into three stages: infantia [infancy], from the birth till seven years of age; pueritia [childhood], from seven to fourteen; and pubertas [puberty] from fourteen upwards. The period of pueritia , or childhood, was again subdivided into two equal parts; from seven to ten and an half was aetas infantiae proxima [age nearest infancy]; from ten and an half to fourteen was aetas pubertati proxima [age nearest puberty]. During the first stage of infancy, and the next half stage of childhood, infantiae proxima , they were not punishable for any crime.

So there. If an 18th century English politician has a better grasp on the mental capabilities of a six year old boy than a modern DA, then the American justice system is in pretty rough shape. But the historical legacy of age restrictions on criminal culpability makes it quite clear that there is a place for reason in the justice system, and that there is some sort of hysteria unique to the United States that makes this sort of thing possible.

Regardless, while this is a shocking and heartbreaking story, the entire thing hinges on whether or not a child can be morally or legally culpable for any crime, let alone a harmless one. Experts commissioned by D’s parents and attorneys will testify quite clearly that exploration of the body is normal for children, and that there is no conceivable link between playing doctor and sexual gratification.

However, that doesn’t mean it’ll get anywhere. It’s notoriously difficult to sue law enforcement officials or prosecutors because of the doctrine of absolute immunity, which shields them from civil liability. Radley Balko writes here that “The courts have ruled that prosecutors can’t be sued even if they intentionally manipulate or manufacture evidence that results in the conviction of an innocent person.”

We can, however, hope that it does, or that the petition to remove Riniker will be heard. It can be found on the Stop Lisa Riniker Facebook page, along with her email address, so you can get up close and personal with your feelings.

But, here are a couple other closing thoughts that tie in with this issue:

The United States executes more underage offenders than any other country in the world. And the list of countries that execute minors includes such beacons of human rights as Yemen, Pakistan, Saudi Arabia and Iran. Furthermore, The American Journal of Psychiatry did a study in the late Eighties that noted out of fourteen children awaiting execution in the United States, only two of them had an IQ above 90.

There is, then, at least a cursory obsession with the criminality of the young, and a reticence to treat them as such.

But, then again, this sort of thing isn’t so surprising when put up against hysterical statutory rape charges for consensual underage sex, or child pornography charges for high school kids who sext each other.

On point of fact, read both of those links. They make for heartbreaking reading, especially the first one. Here’s an excerpt:

Without the registry,” says Shirley Turner, “he would still be alive today.” She is referring, in a 2006 interview with Human Rights Watch, to her 24-year-old son, William Elliot. He was murdered that year by a pedophile-hunting Canadian gunman who found his name and address in Maine’s online database of sex offenders. Elliot’s crime: When he was 19, he had sex with his girlfriend, who was three weeks shy of 16, the age of consent in Maine.

Next is the general obsession with sex crimes, to the extent that people can be charged for relatively harmless things, such as the case of Fitzroy Barnaby, who is now a registered sex offender after grabbing a young girl’s arm while lecturing her. Or, the evidence that some users of child pornography do so as a form of therapy to cope with their own abuse as youngsters.

So there you have it. Egregious abuses and unimaginable hardship for some light, Monday evening reading.


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