
    S.B., Jr., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 98-2718.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1999.
    Rehearing Denied Nov. 15, 1999.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See J.AS. v. State, 705 So.2d 1381 (Fla.1998).

THOMPSON, J., concurs.

W. SHARP, J., concurs and concurs specially, with opinion.

HARRIS, J., dissents, with opinion.

W. SHARP, J.,

concurring and concurring specially.

I sympathize with the suggestion in Judge Harris’ dissenting opinion that because of the age of the appellant — eight and one-half years old at the time of the sexual battery — this incident could be better handled other than in the context of a criminal proceeding. However, the Legislature has provided no cut-off age for persons who are too young to commit crimes. As appellate courts, we cannot do so. Nor can we add requirements for sexual battery crimes that a person should not be prosecuted unless he or she is past or in the midst of puberty, or that the state must prove that the act was done with the motive of obtaining some sort of sexual gratification, without some basis in statutory or case law.

It appears the decision to criminally prosecute and to convict is up to the state attorneys and the trial courts. It is a matter of discretion and judgment to be applied on a case-by-case basis. In this case, the victim testified he was tricked and forced into the sex act. He was mad about that, not because there was no candy in his half-brother’s pants, but because he felt betrayed by him into doing something that he, even at age 4, knew was wrong and bad. That incident ended the boy’s contact and relationship with his stepbrother, which had been close. He did not want to see his half-brother again.

Further, there was evidence that the defendant knew he had done something very bad. He refused to go home with the four-year-old and his mother when she appeared to pick them up from their grandparents’ house where the event took place. The victim’s mother testified she could not understand this behavior and thought it very strange. The next morning when the four-year-old took her aside to tell her something “very serious” had happened she began to understand. She said the sexual battery had adversely affected her son. It was “eating on him” and she felt she had to do something about it.

Looking at the evidence from the point of view favoring the ruling of the trial judge, this incident was not exactly a harmless or innocent incident of young children “playing doctor.” The trial judge said:

[T]here was something seriously wrong here. No matter how I look at this case, one or both of these children have what I call super pseudo sexual sophistication. In other words they know a whole lot more than they ought to be knowing at eight and four, which is why I say there is a serious problem here that nobody’s addressing.

The trial judge went on to suggest that one or both of the children were victims of sexual abuse themselves.

In view of this record, I think we have no choice but to affirm.

HARRIS, J.,

dissenting.

The issue in this case is whether section 794.011(2)(b), Florida Statutes, which criminalizes the conduct of a person “less than eighteen” for engaging in sexual activity with a “person less than 12 years of age,” applies when the perpetrator is eight and the victim is four. Because I do not believe that section 794.011(2)(b) should be applied against an eight-year-old boy not shown to have had the capacity to know the wrongfulness of his act, I respectfully dissent.

The appellant, who was eight at the time, engaged in oral play (I have some difficulty referring to it as “sex”) with his four-year-old half-brother while they were visiting their grandmother. Although consent cannot be an issue in this case, there is no suggestion that force was used. The step-mother, the mother of the four-year-old, reported the incident to the police and the eight-year-old was charged and convicted as a delinquent. There was no proof offered that appellant had ever done anything of a similar nature before or that the incident was not merely a prank.

Admittedly, because the legislature did not provide that the perpetrator envisioned by this statute had to be above a certain age, appellant’s conduct falls within the prohibition of the statute. So also would be the case in which two four-year-olds exhibit sexual curiosity while taking a bath together. However, it seems clear that the “protected class” is intended to be those children incapable of recognizing the wrongfulness of the prohibited conduct and thus incapable of consenting to it. Thus, the statute appears to be intended to protect young children from persons who are older and more knowledgeable and from their own inexperience and lack of judgment. The statute was not intended to criminalize inquisitive conduct engaged in by pre-pubescent children. If it was so intended, I expect our courts will be filled with inquisitive children caught “playing doctor.”

In State v. J.D., 701 N.E.2d 908, 909 (Ind.Ct.App.1998), the court, although holding that one within the protected class could be charged under the statute prohibiting sexual conduct with children, nevertheless held:

Although each subsection of the statute does not so state, criminal intent is an element of the crime of child molesting. ... Accordingly, in situations where there is clearly no criminal intent, such as where the very young children engage in innocent sexual play, an allegation of juvenile delinquency based upon such play would be inappropriate.

There are several cases from other jurisdictions which hold that one within the protected class may be charged with sexual misconduct. None, however, have applied this principle to eight-year-olds. And those that permit charging one within the protected class with committing a sex offense generally hold that the state must prove that the minor was motivated by an unnatural or abnormal sexual interest and knew that what he did was wrong. See In re Gladys R, 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127 (1970); In re Billy Y., 220 Cal.App.3d 127, 269 Cal.Rptr. 212 (5 Dist.1990).

In Commonwealth v. Walter R, 414 Mass. 714, 610 N.E.2d 323 (1993), the court upheld a finding of delinquency of a thirteen-year-old for committing a sex act, observing that puberty, or sexual maturation, begins between the ages of 10 and 12.

In our case, the victim testified that he was tricked into putting appellant’s penis into his mouth because appellant told him it was candy “in his pants” and that the incident lasted “a real short time.” He was upset at being tricked.

Does appellant’s conduct in this case indicate that he is a mini-pedophile? Does it indicate that he is a sexual predator? Does it indicate a youthful prank: “Ha-ha, I fooled you!” Or can it be that we have a young boy whose curiosity caused him to inappropriately “try” something that he had seen (was he exposed to X-rated movies?) or heard about (perhaps he overheard an overly picturesque discussion of the Lewinsky affair) at an alarmingly early age? If it is the latter (and I suspect that it is), did he realize that what he was doing was wrong? No such proof was offered. If there is no indication that the child is likely to repeat such conduct after appropriate parental discipline and with closer parental supervision (and there is no such indication), then I submit judicial intervention with sex therapy may cause far more harm than benefit for this eight-year-old child. Even if intervention is justified, dependency and not delinquency would seem to be more appropriate.

The majority relies on J.A.S. v. State, 705 So.2d 1381 (Fla.1998). I do not find this case dispositive. It is true that the court in J.AS. held that those within the same protected class as the victim (J.AS. involved children under the age of sixteen) could be prosecuted for violating the provisions of section 800.04(4), Florida Statutes. There, fifteen-year-old boys had sex with twelve-year-old girls. There are two distinctions that I would draw.

First, there is no indication that the court in J.A.S. intended that its holding should apply when the alleged perpetrator is below the age of puberty. The court did not decide in J.A.S. whether criminal intervention would further a compelling state interest through the least intrusive means when the perpetrator is eight-years-old and, insofar as we know, is entirely sexually innocent.

The second distinction is reason itself. There are children so young and immature that they simply should not be held criminally responsible for sexual inquisitiveness. Perhaps with the advent of sexually explicit movies and TV children are becoming sexually knowledgeable at a much earlier age. Since the “age of reason” in sexual matters may vary from child to child, the state should be required to prove in its prosecution of one so young that he was aware that the alleged act was wrong. It was not so proved in this case.

The judge in this case provided the option of level 8 commitment or probation with the “standard conditions.” When the child’s natural mother expressed concern about her child being required to wear a leg monitor at school, the court adjudged the child delinquent and placed the child in a level 8 residential facility, suspended if the child complied with a juvenile sexual offender treatment alternative.

The boys’ father indicated that he had talked with both of his sons about the matter and believed that the action he took was adequate to resolve the problem. Under the facts of this case, I agree with the father. 
      
      . It should be noted that appellant has consistently denied that the event occurred. The incident was reported to the police over two months after the victim's mother learned of the allegation and after she separated from the boys’ father. The trial court, however, believed the testimony of the young victim even though it was given two years after the incident. That was the judge's prerogative.
     