Is That 4-Year-Old Really a Sex Offender?

By Yvonne Bynoe
Sunday, October 21, 2007

Could my son be accused of sexual harassment? He's a good boy. He likes watching "Thomas the Tank Engine" on television and playing "Simon Says." Like many 3-year-olds, he's very affectionate. Unfortunately, hugging his teacher may get him suspended from nursery school.

I doubt that it will happen to my son. But the frightening fact is that it could. I recently learned that children nationwide, some of preschool age, have been suspended from school or taken to jail after being accused of sexual harassment. In their zeal to avoid lawsuits, educators seem to be ignoring important information, such as whether the accused child intended to commit a crime or even knows how to pronounce the word "harassment."

Sex education tends to be controversial, partly because parents have such varying and often strongly held beliefs about how, when and even if the topic should be introduced to their children. But if schools have the authority to brand a 3-year-old a sex offender, they also have the responsibility to provide parents with clear guidelines about appropriate physical conduct.

It's great that we are more aware than ever about sexual harassment in schools. But it is a terrible mistake to permanently label children who are barely out of diapers.

Consider these egregious examples: In December 2006, a 4-year-old boy in Waco, Tex., was punished with an in-school suspension after a female aide accused him of sexual harassment. According to a television station there, the child had hugged the woman while getting on the bus, and she later complained to administrators at La Vega Primary School that the child had put his face in her chest. School officials later agreed to remove sexual references but refused to expunge the "inappropriate physical contact" charge from the boy's school record.

In my home state of Maryland, state data show that during the 2005-06 school year, 28 kindergartners were suspended for sex offenses, including 15 for sexual harassment.

Last December, a kindergartner was accused of sexual harassment after he pinched a classmate's bottom at Lincolnshire Elementary School in Hagerstown, according to the local paper, the Herald-Mail. The charge will remain on his record until he enters middle school. "It's important to understand a child may not realize that what he or she is doing may be considered sexual harassment, but if it fits under the definition, then it is, under the state's guidelines," school spokeswoman Carol Mowen told the Herald-Mail. "If someone has been told this person does not want this type of touching, it doesn't matter if it's at work or at school, that's sexual harassment."

In fact, the Maryland Department of Education defines sexual harassment as "unwelcome sexual advances, requests for sexual favors and/or other inappropriate verbal, written or physical conduct of a sexual nature directed toward others." I am alarmed that Mowen's statement appears to imply that schools will find a child guilty of sexual misconduct even if the child doesn't understand the implications of his or her actions.

Money may be at the root of these school suspensions. A 1992 Supreme Court ruling set the stage for school districts' having to pay damages in sexual harassment cases. In Franklin v. Gwinnett County Public Schools, a high school student, Christine Franklin, was sexually harassed by her male teacher.

The court held that sexual harassment was a form of discrimination prohibited under Title IX of the Education Amendments of 1972. Since Franklin proved that the school failed to stop the harassment, she was able to sue the school district for monetary damages -- something previously impossible for victors in Title IX suits.

Seven years later, in Davis v. Monroe County Board of Education, the high court extended the liability of Title IX to include "student-on-student" harassment. In 1999, LaShonda Davis, a fifth-grade student, complained to her mother and teacher that a male student had repeatedly made vulgar comments to her and tried to touch her private parts. The school's principal was also made aware of the alleged sexual harassment, but the boy was never disciplined and his behavior worsened. The court ruled that the school's "deliberate indifference" to "known acts of harassment" was itself misconduct under Title IX, and Davis was allowed to sue for monetary damages.

I doubt that the Supreme Court imagined that its decisions in Franklin and Davis would be used to criminalize the behavior of preschoolers. In our legal system, children are not treated as miniature adults. Juvenile courts were founded 100 years ago because children were considered less accountable for their actions than adults -- and therefore less culpable.

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