By now, most people have heard of the
Wisconsin prosecutor who threatened to criminally charge school teachers for teaching sex-ed classes, even though parents could opt their children out of the sex-ed program, and even though the sex-ed program itself had been approved by the state legislature. But not all prosecutors take this anti-legislature approach; some will justify their acts, no matter how absurd, by attempting to align themselves with the legislature. That is, if the legislature fails to specifically forbid the bizarre, unimaginable thing they want to accomplish, then, they reason, their actions must be acceptable. That’s the tactic a different Wisconsin prosecutor used to justify charging a six-year-old child with felony sexual assault for "playing doctor" with a five-year-old.
Fortunately, in the “playing doctor” case, the defendant-child’s parents got lawyers of their own and are suing the prosecutor and others involved for millions of dollars. I don’t know much about civil lawsuits, but I hope they win big. We have to find some way to deter this type of prosecutorial behavior which, in this case, is alleged to have caused the six-year-old defendant-child “anxiety, depression, vomiting, crying and lack of sleep.” But, more to the point, how does this prosecutor justify her absurd, costly, and life-ruining decision to prosecute the five-year-old under the sexual assault statute? She is alleged to have said: "the legislature could have put an age restriction in the statute . . . the legislature did no such thing."
These two prosecutors need to remember that despite their tremendous, unchecked power, they are not the plaintiffs. Instead, they both represent the same client: the state of
. Therefore, these prosecutors should not, on the one hand, threaten to charge people criminally for complying with a law passed by the state legislature, and then, on the other hand, justify an outrageous prosecution of a six-year-old—who, according to experts, can’t consciously pursue “sexual gratification,” which is an element of the crime charged—because the state legislature doesn't specifically forbid it. Wisconsin
These prosecutors need to use their heads, and seriously think about what they want to do before they do it. The legislature, for reasons unknown to me, continues to give them broad and unchecked discretion in who and what they can prosecute; however, they should exercise their power with great caution, or the people may one day decide to take it away from them. Finally, they should stop embarrassing themselves and rein in their prosecutorial babble and double-speak.