I previously wrote a column about the ongoing controversy over statutory rape prosecutions, the subject of prior blogs. Now, Grant County District Attorney Lisa Riniker appears intent on outdoing other prosecutors by charging a 6-year-old boy with first-degree sexual assault for what the family says was playing doctor with a 5-year-old girl.

The toddler is charged with a Class B felony and Riniker rejects criticism that she failed to apply not just discretion but reason. Instead she says “the legislature could have put an age restriction in the statute if it wanted to. The legislature did no such thing.” That apparently is license for Riniker to charge anyone who has progressed beyond the fetus stage (and earlier in those states giving fetuses the status of person — and potential rapists).

Notably, the girl (and her brother who was involved in the game) are the children of a powerful political figure in the county and was not charged.

The boy will be forced to register as a sex offender wen he is 18 and spend the rest of his life under the restrictions imposed on rapists and child molesters. What is astonishing is that Riniker appears to have maintained a willful blindness to the fact that she was prosecuting a toddler. The complaint below states:

Until last week, the District Attorney (DA), Defendant Riniker, was (or caused the) addressing and sending mail to 6 year- old D, rather than to the parents, and that the DA refers to the 6 year-old not by his first name but as “Mr._____” (last name redacted because of the child’s age). Furthermore, she sends or causes to be sent to the 6 year-old paperwork that tells him that he could go to jail if he does not show-up for court.

The boy suffers from ADHD, but neither his disability or his age appears to have relevance to Riniker.

Also named in the lawsuit below are Jan Moravits, a social worker with Grant County Social Services, and Sgt. James Kopp, who recently retired from the Grant County Sheriff’s Department.

The lawsuit alleges 1983 claims for loss of first amendment and due process protections. It also includes an allegation of the negligent infliction of emotional distress. Wisconsin has historically been somewhat skeptical of these claims — only recognizing intentional infliction of emotional distress in 1963. A court explained the continuing unease over the claims in Bowen v. Lumbermens Mutual Casualty Company, 183 Wis. 2d 627 (Wis. 1994):

On the other hand, courts have struggled with the tort of negligent infliction of emotional distress, concerned that the negligent conduct did not adequately assure the authenticity of the plaintiff’s claim of severe emotional harm. Courts have historically been apprehensive that psychological injuries would be easy to feign and that suits would be brought for trivial emotional distress more dependent on the peculiar emotional sensitivities of the plaintiff than upon the nature of the tortfeasor’s conduct. People should not, courts reasoned, be able to sue for everyday minor disturbances. Furthermore courts feared that opening the courts to claims for negligent infliction of emotional distress would open the floodgates of litigation and lead to unlimited liability for a negligent tortfeasor.

The difficulty with such claims (despite the compelling facts) is that courts heavily favor government officials in their use of discretionary powers. It is an ironic twist. Most attorneys view this as an abuse of prosecutorial discretion while Riniker will likely argue that the protection of discretionary powers includes the alleged abuse or lack of exercised discretion.

In Brach v. City of Wausau, 0617 F. Supp. 2d 796 (W.D. Wis.2009), a court dismissed a case against officers for excessive force and forcing the plaintiffs into public wearing only his underwear. The court still found it was privilege for purposes of an 1983 action.

Faced with overwhelming criticism from lawyers and non-lawyers alike, Riniker went to Judge Bill Dyke in Iowa County and demanded a gag order. Dyke gave it to her but the order does not silence the growing number of people denouncing the case as an abusive of power. Ironically, I just spoke with David Bois as part of the ABA conference about the growing misuse of gag orders in courts around the country in high-profile cases.

Perhaps there was something that made Riniker feel that the boy was culpable in this incident. However, to charge a toddler with felony sexual assault defies reason. The use of a felony charge to force a child into supervision is an abuse of the criminal code in my view.

Here is the complaint: 261455600-18135628

Source: Journal Sentinel