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

By Yvonne Bynoe
Washington Post
Nov. 02, 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.

Schools, however, now appear to be holding even young children to adult standards of responsibility and liability. To me, some cases seem clear-cut. If an 11-year-old boy touches a 4-year-old girl's genitals and asks her to perform a sex act, his intent is apparent. But the motivations of two 4-year-olds caught "playing doctor" are less clear; it's probably natural curiosity, not abuse.

The situation gets even more muddy when adolescents are involved and the alleged victim is part of the horseplay. Last February, two 13-year-old boys in McMinnville, Ore., were arrested, put in handcuffs and placed in juvenile detention for five days for allegedly slapping several girls' backsides, according to news reports. The boys were charged with several counts of felony sexual abuse and faced up to 10 years in prison and the prospect of having to register as sex offenders upon release.

In August, several of the girls who initially filed the complaint asked a judge to dismiss the charges, which he did. The boys said the butt-slapping was a game inspired by the movie "Jackass." Like so many activities that adolescents engage in, the slapping was idiotic but not criminal.

Sexual harassment is serious business, and educators should not shirk their duty to ensure that schools are safe environments. But each school district should develop a clear, widely publicized policy that explains what sexual harassment is, gives examples of unacceptable conduct and clearly describes how discipline will be administered.

I have not received instructions of any kind -- not a manual, pamphlet or flier -- from my son's school regarding sexual harassment. Neither have my friends with kids, except in the vaguest terms. Given the long-term ramifications of accusing a child of a sex offense, schools have a duty to warn students and parents about the behavior that they deem inappropriate or unlawful, rather than simply placing a scarlet letter on a kid's forehead after the action has occurred.

Like millions of other parents, my husband and I are doing our best to teach our preschooler to respect others. But if holding a classmate's hand is out of bounds, his school needs to let us know.
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Yvonne Bynoe is a senior fellow at the Future Focus 2020 center at Wake Forest University and the editor of the forthcoming "Who's Your Mama: The Voices of Unsung Women and Mothers."












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