The crime of playing doctor

Little girl is snatched from her parents & charged with sexual assault

A 12-year-old girl from a Toronto suburb is on trial for sexual assault, accused of playing doctor with two 11-year-old girl friends.

A 16-year-old boy in the Cornwall area is on trial for uttering a death threat, after he wrote a story for school.

What do these cases have in common, aside from the fact that these criminal charges are destroying these young people’s lives?

A law and order agenda, and the idea of zero tolerance.

Officials are getting tough on crime, and cracking down specifically on youth crime. Violence, particularly in schools amongst teenagers, is simply not permitted. Under zero tolerance policies, students will be expelled, and police will be called.

In a similar vein, there are “mandatory charge no drop policies,” which means that police must lay charges and Crown attorneys must prosecute.

Zero tolerance is the end of a case by case approach, under which each member of the school and the criminal justice systems decide what would be most appropriate in the circumstances. It is the end of discretion to deal compassionately with the individuals involved in cases. It is the end of thought.

These policies were originally developed to deal with serious problems. When it came to sexual assault and domestic violence, the folks in the criminal justice system just didn’t take it seriously enough. So police didn’t lay charges, and even if they did, Crown attorneys refused to prosecute them.

Similarly, zero tolerance policies were developed to take violence in schools seriously. The were intended to take the discretion away from teachers and principals, who may have been turning a blind eye in the face of bullying and other kinds of violence among students.

But look where we have ended up.

A teenager has been charged with uttering a death threat, after writing a story for school. True, we don’t really know what happened here, since there’s a court-ordered media black out. But school officials have cited zero tolerance to violence in support of the decision to contact the police about the boy. And the police say pretty much the same thing.

The zero tolerance policies don’t seem to have helped the boy himself, who was allegedly repeatedly bullied in the same schoolyard.

Then there’s the 12-year-old girl.

Three young friends were playing one afternoon. A few days later, the two 11-year-olds went to their parents after the older friend started rumours that they were lesbians.

They said that their friend had briefly forced oral sex on them. They said that she let the family dog rub his genitals against her from behind. One also said that their friend pulled off her pants and underwear, and tried to get the dog to mount her.


After this alleged incident, the girls stayed and played together for at least an hour.

The next day, the three had a fight. After the fight, the 12-year-olds started spreading the rumours. Then, and only then, did the girls go to their parents with the story.

Parents called the police, and all hell broke loose. The girl spent a night in jail, and the Children’s Aid Society took her into custody, placing her in a secure group home. And the police charged her with sexual assault.

The (possible) consent of the two 11-year-old girls doesn’t matter. According to the law, a person under the age of 12 can’t consent to sex. Period.

And according to the law, a person under the age of 12 wouldn’t be charged with sexual assault.

But, the 12-year-old is, well, 12 years old. She had just celebrated her birthday. It doesn’t matter that these girls are all effectively the same age. She is 12, the others aren’t. And down comes the law in all its glory.

Now strictly speaking, there are no zero tolerance policies at work here. No mandatory charge-and-no-drop policies. The Crown attorney had the discretion to drop the charges. But she didn’t.

She pressed ahead because she says it is in the best interests of the community and the young girl. She told The Globe And Mail: “We have no other ability, no mechanism, to ensure that somebody receives treatment or anything that will help with their rehabilitation.”

First, this is simply wrong. There were plenty of other things that child welfare authorities could have done.

And at most, a case like this might call for counselling (and personally, I don’t think that there’s anything wrong with sexual experimentation). But criminal charges? This is nothing short of lunacy.

The girl’s lawyer suggested that Crown attorneys are under a lot of pressure to prosecute, even when they have the discretion to drop the charges.

The ideas of getting tough on crime and of zero tolerance are in the air. The Crown attorneys are breathing it in.

These are ideas run amuck, and destroying the life of a little girl who was experimenting sexually.

Gay men and lesbians should be worried about this little girl, and not only because it involves same-sex sexual experimentation. We should be worried because it involves the criminalization of sexual experimentation period (never mind the fact that it also criminalizes sexual experimentation between kids of the same age).

And we should be very worried about the message that this case sends to young folks, who may be experimenting with their sexuality.

Who knows if this little girl is a lesbian – she probably isn’t, since a lot of sexual horseplay has nothing to do with sexual identity. But, sometimes, it does. And the message sent to these kids is not only that there’s something wrong with them, but that they might end up in jail.

Protecting children from sexual abuse is important. But the sexual hysteria drummed up by some of those who seek to do so is out of control. As are the zero tolerance policies.

Those policies may have been a good idea at the time. But that time has passed.

It’s time to re-inject the mission to protect children with a little compassion.

Brenda Cossman

Brenda Cossman is a professor of law at the University of Toronto, the author of Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford University Press) and a former board member of Pink Triangle Press, Xtra’s publisher.

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