Charging Kid Who Played Doctor Wasn’t Malicious

     CHICAGO (CN) – It was “poor judgment,” but not unconstitutional, to charge a 6-year-old with sexual assault after he played doctor with other children, the 7th Circuit ruled.
     D.B., as he is named in the court record, had allegedly been interested in playing doctor that September 2010 because the 6-year-old had just concluded extensive medical testing for digestive problems, which included rectal examinations and enemas.
     While playing with 5-year-old C.C. and her twin brother W.C. in his Lancaster, Wis., backyard, D.B. was interrupted by the twins’ mother.
     She reported D.B. to the Grant County Department of Social Services, saying she saw D.B. put his finger in her daughter’s anus.
     D.B. claimed that he touched C.C.’s bare butt.
     A district attorney then filed a petition in court claiming D.B. had committed first-degree sexual assault, and needed public protection.
     The twins told interviewers that they had also played doctor in the “same manner” D.B. had, but D.B. alone was prosecuted based on the mother’s eye-witness account.
     Social Services intake coordinator Jan Moravits allegedly told D.B.’s parents their son needed “to admit his crimes,” and threatened “to have their children removed if they did not give in to her demands.”
     Moravits also “made an effort to have D.B. register [as a sex offender] when he turns eighteen,” and “cherry-picked” a babysitter’s allegation that D.B. once sexually touched her, D.B.’s parents claimed.
     The case was later closed with a consent degree, and D.B.’s parents filed a malicious prosecution complaint against Grant County, its social services department, Moravits and Sheriff’s Deputy James Kopp
     D.B.’s parents claimed their son was singled out because the twins’ father is a high-ranking local political figure.
     A federal judge dismissed the complaint for failure to state a claim, and the 7th Circuit affirmed Thursday.
     “Here, the complaint alleges an improper subjective purpose – political favoritism – but it also discloses an objective rational basis for the disparate treatment,” Judge Diane Sykes wrote for the three-judge panel. “The twins’ mother witnessed D.B.’s conduct and reported it. On the other hand, there was no adult witness to the twins’ behavior; they simply admitted to participating in the ‘doctor’ game in the ‘same manner’ as D.B. It’s rational to credit a concrete report from an adult eyewitness and discount the generalized admission of a five-year-old. This rational explanation for the difference in treatment defeats the claim.”
     It is not enough that “political connections may also plausibly explain why D.B. was targeted for investigation and the twins were not,” according to the ruling.
     “All it takes to defeat the plaintiffs’ claim is a conceivable rational basis for the difference in treatment,” Sykes wrote. “The allegations in the complaint suggest a rational reason to investigate D.B. and not the twins.”
     The court concluded by chastising Wisconsin’s response to the incident.
     “Our decision today should not be understood as an endorsement of this use of state power, which strikes us (assuming the allegations are true) as a troubling overreaction to a situation that could and should have been handled informally,” Sykes wrote (parentheses in original). “It’s easy to understand why the twins’ mother would be alarmed and upset, but it’s also reasonable to expect that the response by Grant County officials would be measured and proportionate. As the district court aptly put it, accusing a six-year-old boy of first-degree sexual assault shows ‘poor judgment at best.’ But poor judgment does not violate the Constitution.”

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