Globe and Mail

Sexual horseplay lands girl in custody for year

KIRK MAKIN
The Globe and Mail
Wednesday, January 31, 2001

JUSTICE REPORTER -- An incident of apparent sexual experimentation among young girls has landed a 12-year-old in secure custody for a year while she awaits the outcome of her trial for sexual assault.

The bizarre case has been quietly unfolding in a Toronto suburb since the young defendant was arrested last spring, three months after her 12th birthday.

The two complainants, both 11 at the time, claimed that she pulled their pants down during an after-school play date at her foster home, briefly licking their genitals.

The complainants, who are best friends, went to their parents after the defendant started rumours in their Grade 6 class that they were lesbians and that they had permitted a dog to mount them.

The story quickly swept through the school.

"These were children at the age of puberty who were curious and just experimenting," defence lawyer Ed Brown said in an interview yesterday. "The complainants say it was not consensual, but their story makes that pretty hard to believe.

"The whole situation is not ideal," he said. "The 11-year-olds just continue on with their lives, but my client has been put in a group home. It is very similar to a kids' jail. Her life has been on hold for a year. It does bother me."

Mr. Brown said his client has been in a secure group home since being released on bail after spending a night in jail upon her arrest.
She was placed by the Children's Aid Society in the secure home rather than be returned to her foster parents or to her single mother, with whom she lived before being removed by the agency late in 1999.

The girl is surrounded by older adolescents with records of serious misbehaviour or criminal activity, Mr. Brown said.

"She will be influenced by these older kids," he said.

"She was taken out of her school and community and never brought back. I think that whatever education she is getting is also within the institution."

The proceedings have stretched out over 10 months partly because the case is being heard by an out-of-town judge. Two days of testimony have been heard, one in July and one in November. Final arguments are scheduled for early March.

The identities of the children are protected under a publication ban. For the purpose of this story, the defendant will be called Robin and the two complainants Sarah and Sandra.

Robin has consistently maintained that all three engaged in hugging and French kissing, but that there was no nudity or sexual activity.

"That's not true," she said in a videotaped police statement after her arrest. "That is so not true. It never happened. I swear to God."

Mr. Brown said the peculiarities of the Young Offenders Act place his client in a near-impossible legal position. Had she not turned 12 just before the alleged incident, he said, Robin could not have been charged.

Worse still, Mr. Brown said, it is futile for Robin to say that the sexual experimentation was consensual, since consent is not a defence when complainants are under the age of 12. If the trial judge should conclude that any sexual activity whatever took place, he said, Robin will be automatically convicted.

The gist of the complainants' stories is that Robin briefly forced oral sex on each of them late on the afternoon of March 31, 2000.

Sandra said she was licked "for about a second," while Sarah said Robin licked her for less than a minute.

They say Robin also allowed the family dog to rub his genitals against her from behind, both while clothed and after disrobing, as they watched in surprise.

Sarah also testified that at one point, Robin pulled her to the floor of her foster parents' bedroom, yanked her pants and underwear down, and enticed the dog to mount her briefly.

Both girls acknowledge that they took no concerted action to physically stop Robin, and that they continued to play with her for an hour after the alleged incidents.

Testifying at the trial, Robin's foster mother said that when she arrived home that evening, everything seemed normal.

All three girls agree that they had a spat the following day, prompting Robin to start spreading the rumours of lesbianism.

The maximum possible sentence Robin faces is three years in closed custody.

Mr. Brown said he has been unable to find any precedents that mirror the case.

One of his closing arguments will be that under the Charter of Rights equality provision, it should be impossible to charge a 12- or 13-year-old for having consensual sex with a slightly younger peer.

Copyright 2001 Globe Interactive, a division of Bell Globemedia Publishing Inc.