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Respondent Engaged in Criminal Sex Acts With a Minor



In a case, it is alleged that on or about March 12, 2005, at about 5:00 PM, at x New York, Nassau County, State of New York, the respondent engaged in conduct, which if engaged in by a person sixteen (16) years of age or older, would constitute the crimes of Criminal Sexual Act in the First Degree, in violation of Penal Law §130.50(3), a class B Felony; Attempted Criminal Sexual Act in the First Degree, in violation of Penal Law §§110/130.50.(3), a class C Felony; Sexual Abuse in the First Degree, in violation of Penal Law §130.65(3), a class D Felony; Attempted Sexual Abuse in the First Degree, in violation of Penal Law §§110/130.65(3), a class E Felony; and Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), a class A Misdemeanor.

A Nassau County family lawyer said that the respondent engaged and/or attempted to engage in oral sexual conduct with another person who is less than eleven years old; in that respondent put his mouth on the complainant’s penis. The complainant is six years old.

The respondent having filed a motion with this Court, requesting an order, pursuant to FCA § 315.2, dismissing the herein petition in furtherance of justice, upon the grounds that a finding of delinquency would constitute or result in an injustice. The Presentment Agency has filed an Affirmation in Opposition to respondent’s motion and respondent has served a Reply.

The law guardian contends that regardless of whether the court finds there was probable cause to believe the respondent committed a misdemeanor or he committed a felony, respondent should still be placed in a residential setting, away from his parents’ care. The respondent’s counsel asserts that due to respondent’s special needs and developmental deficiencies, his best interests and needs would be at risk, in that: (1) the removal of the respondent from his parents, educational setting and counseling would prove to be extremely detrimental to him emotionally and physically; (2) there is no appropriate facility in which this particular respondent could be placed to meet all his needs; (3) the respondent has always been under the care of his parents and he is highly dependent on them emotionally; (4) removal of respondent from his family would cause him to suffer depression and suicidal acting out; and (5) respondent’s integrated school program and regular counseling would be disrupted.

The respondent’s counsel contends that respondent is not a risk to society and has already engaged in a sex offender risk assessment and counseling. Additionally, that removing respondent from his present setting would not serve the goal of “rehabilitation,” but instead would cause great harm. In support of respondent’s motion are the affidavits of a doctor; respondent’s parents; and another doctor.

The affidavit by respondent’s parents reiterates that it would be in respondent’s best interest to remain in his present environment, removal of respondent from his environment would be detrimental, and the respondent receives therapeutic services from two therapists.

In their opposition, the Presentment Agency contends that the matter should not be dismissed and that the Court should proceed to the probable cause hearing. The Presentment Agency bases their opposition upon the seriousness and circumstances of the crime; the need to protect the community; the extent of harm caused to the complainant; and the history, character and condition of respondent.

The Presentment Agency contends there is no evidence that the complainant initiated the sex act, and that even if he had, it would not justify or provide a defense to respondent’s actions.

The Presentment Agency asserts that because the complainant is a 6 year old child, subjected to unwanted sexual contact, the harm caused is immeasurable and likely to have life-long consequences.

The next concern raised by the Presentment Agency is the history, character and condition of the respondent. Because respondent is described as a “follower,” the Presentment Agency fears that he may be “lead astray” again in the future.

Finally, due to respondent’s inability to understand the consequences of his actions, the Presentment Agency is concerned that respondent may pose a danger to other children in his community.

Section 301.2(13) of the Family Court Act defines an “incapacitated person” as: “a respondent who, as a result of mental illness, mental retardation or developmental disability as defined in subdivision twenty, twenty-one and twenty-two of section 1.03 of the mental hygiene law, lacks capacity to understand the proceedings against him or to assist in his own defense.”

The relevant portion of the Mental Hygiene Law §1.03, states: 21. ” Mental retardation’ means subaverage intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior.”

Once a Court determines a respondent is an “incapacitated person,” it shall schedule a probable cause hearing in conformity of Section 325.2 of the FCA; [FCA §322.2 (3)]. If after the hearing the Court finds there is probable cause to believe the respondent has committed

Misdemeanor, then “the respondent shall be committed to the appropriate commissioner for a reasonable period not to exceed ninety days. The court shall dismiss the petition on the issuance of the order of commitment.”

Pursuant to FCA §315.2, on motion, a court may at any time dismiss a petition in furtherance of justice as a matter of judicial discretion where there exists compelling further considerations or circumstances which clearly demonstrate the finding of delinquency or the continuance of the proceeding would constitute or result in injustice. The statute delineates seven (7) factors for the court to examine in determining whether or not such compelling further consideration or circumstances exist.

Although the statute grants the trial court broad discretion to dismiss a petition in the furtherance of justice, the reason for the dismissal must be “readily identifiable and sufficiently compelling;” The Court concluded that it was a ” rare and unusual case [that] cries out for fundamental justice beyond the confines of conventional considerations'”. The statute seeks to strike a balance between the needs and interest of the respondent and the interests of the community. In juvenile delinquency proceedings, the court’s ultimate goal is rehabilitation, not retribution, and the safeguarding of the community.

The Court would like to preface the forthcoming decision and order by stating that it is completely aware of the anguish imparted on parties and their families, and the sensitive nature of the issues at hand.

Neither the medical testimony given during the competency hearing, nor the medical evidence submitted by respondent, depicts respondent as a predator, aggressive, or a risk to the community. Quite an opposite picture is painted of respondent. He is described as a “follower,” unable to assert himself in getting out of negative situations, and not likely to be an initiator of sexual acts.

Being a “follower” is not a trait which necessitates retribution. Under the present circumstances, this character trait requires rehabilitation. Although being a follower could cause respondent future problems, this and similar issues can be addressed on an out-patient basis as well.

Additionally, respondent’s daily lifestyle provides for a great deal of supervision and monitoring.

The Court must consider the respondent’s history, character and condition. No one has placed respondent’s character into question. Respondent’s history is founded upon his condition. His history/condition is that of a child, who since birth, has suffered from cognitive and physical difficulties and who has been under treatment almost as long. He resides with two parents who are fully cognizant of respondent’ s problems and seem to have engaged in a very hands-on approach in assisting him.

The respondent is a student who is classified with multiple disabilities, and as such, he is probably placed in an inclusion classroom setting with a very low student/teacher ratio, and highly supervised. Respondent has been participating in weekly psychotherapy for almost five (5) years, which provides supervision of his emotional well-being.

During the competency hearing, both doctors did testify that, even with treatment, the respondent would be unable to achieve competency to understand the consequences of his actions. However, this is not to say that respondent is unable, through treatment, to learn not to do, avoid or stop certain acts because they are wrong. The analysis is akin to teaching a toddler not to put objects in their mouth. A toddler does not comprehend the concepts of choking or germs, but they can be taught to stop the act.

The seriousness of the crimes charged are obviously disturbing and unsavory, especially in view of the complainant’s tender age. However, the circumstances of the alleged crime are troublesome as well. There has been no determination as to whether respondent or complainant initiated the act, there is just an allegation. Notwithstanding the disparity in age between the complaint and respondent (approximately 6 years), their emotional and social maturity may be on equal footing due to respondent’s cognitive and emotional difficulties.

However, a determination of who”initiated” the act could have some bearing on the eventual outcome after a hearing, and needs to be given consideration in ascertaining whether these proceedings could result in an injustice.

The Court is unable to address the extent of the harm caused by the acts alleged. It is clearly conceivable that the complainant and his family have suffered some harm. There is no doubt that any person subjected to unwanted sexual contact could suffer long-term, if not short-term, consequences. The Presentment Agency’s papers are silent as to any crisis counseling or treatment the complainant may have sought as a result of the incident alleged.

After a hearing, whether or not there was probable cause to believe respondent committed a misdemeanor or felony, he would still be placed in a residential treatment center for a period of time. While in placement, the respondent would receive therapeutic services and counseling. As stated earlier, counseling relating to appropriate and inappropriate touch (sex acts) would likely be incorporated as part of respondent’s treatment. However, the respondent is already participating in psychotherapy and receiving sex counseling.

Presently, whether treatment is conducted on an in-patient or out-patient basis, reformation will only change respondent’s rote behavior, and will not impact his ability to conceptualize “why” some behaviors are unsuitable. However, placement in a residential facility may prove to cause more harm than good. Instead of aiding in respondent’s reformation, it could unravel years of therapy and services, which is clearly not in respondent’s best interests.

It should be noted that three of the five crimes charged require a showing that the respondent acted with “intent” or “knowingly”. It has already been determined by this Court that the respondent is an incapacitated person within the meaning of the law. The Presentment Agency would be faced with a difficult burden to prove all the elements of the above-referenced charges. Even in a situation where the Presentment Agency is left to proceed on the remaining two charges, they would face difficulty in establishing during a hearing that it was, in fact, the respondent who initiated the sex act. Especially in view of the expert testimony which will be offered by respondent, and where the key witness, the complainant, is only six years of age.

Upon careful review of the case law and facts, the Court cannot see anything fruitful stemming from a probable cause hearing in this matter. In fact, the Court envisions an injustice, more trauma for the parties and their families, and the potential for a second victim if this matter were to proceed further.

Family matters should be consulted to experienced and skilled lawyers, who can give you a reliable advice. Here in Stephen Bilkis and Associates, our attorneys will listen to your predicament and will give you an advice. Contact us for more information.

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