Child Can Be Charged With Molesting, Court Says

A boy under 14 can be charged with molesting an older child, but his age should be considered in deciding whether he had a sexual intent, a state appeals court ruled Wednesday.

The 4th District Court of Appeal overturned four felony convictions of molesting against an 11-year-old boy who touched the breasts of three girls--two aged 12 and one 13--without their consent.

The crime consists of the lewd touching of a person under 14. The court rejected defense arguments that it cannot be charged against someone who is also under 14 or against someone who is younger than the victim, saying the law makes no such distinctions.

From the perspective of the person being touched, a 13-year-old and a 10-year-old “are equally protected by the [law] and are equally victimized” by an 11-year-old, said Justice Alex McDonald in the 3-0 ruling.

On the other hand, he said, the prosecutor must prove that the boy knew his actions were wrong and had the intent to arouse his own sexual desires or those of his victim.

“The younger the minor, the less likely his acts are with the specific intent of sexual arousal,” McDonald said. “At some age younger than 14 years, which we need not determine in this case, the minor cannot as a matter of law have the specific intent of sexual arousal.”

In this case, McDonald said, there was evidence that the boy had been told by his mother not to touch girls in certain places, but no evidence of a sexual motive.

Noting that the boy had not yet reached puberty, McDonald said the record showed that he “was a brazen 11-year-old whose conduct was more consistent with an intent to annoy and obtain attention than with sexual arousal.”

The boy thus may have been guilty of battery but not of molestation, the judge wrote.

The boy, from San Marcos, was also convicted of separate charges of battery and threatening a 9-year-old with a knife to get ice cream money. But his lawyer, John Lanahan, said the molesting charges were the reason San Diego County Superior Court Judge Lawrence Kapiloff placed the 11-year-old in a state facility, where he has been held since June 1996.