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The boy’s attorney contends that his client is not a risk to society


In this case, the complainant is a six years old boy and his opponent is a twelve years old boy, whom were alleged to have been caught in a sex act.

The twelve years old boy was born by a cocaine-addicted mother and subsequently adopted by a couple days after his birth. The boy has special needs and since birth he experienced both developmental and medical difficulties. Since infancy, the boy received physical, occupational, speech, feeding, and vision therapies. He also suffers from decreased muscle tone and chronic constipation. He has been classified by his local school district as multiply disabled and attends an integrated educational program which includes speech, therapy and counseling. The boy has an I.Q. of 69, which places him in the mildly retarded range of intellectual functioning. No criminal charges were made for drug possession.

Afterward, the court ordered an out-patient evaluation of the twelve years old boy to determine whether he is an incapacitated person within the meaning of the law. The boy was then evaluated by two court appointed mental health professionals. Their reports were submitted to the court. The reports explained that the boy was an incapacitated person stemming from cognitive difficulties, and lack the capacity to understand legal proceedings. It was further indicated in the reports that treatment would not improve the boy’s ability to comprehend his legal situation. Robbery was not an issue nor was burglary.

A competency hearing was then initiated. Both mental health professionals testified as to the contents of their reports and as to their individual observations during their examinations of the boy. After the review of the reports and hearing all the testimony, the court found the boy to be an incapacitated person and therefore, incompetent to stand the proceeding. The matter was adjourned for a probable cause hearing.

The court, the boy’s law guardian and one agency participated in a very lengthy conference in an attempt to determine the best way to proceed on the said matter. The conference failed to produce a solution of sound mind for both sides in light of the boy’s inability to understand his pending legal proceedings. The matter was again adjourned.

On the next court date, the agency’s witnesses, including the complaining witness, were not available. The law guardian made an application to submit the motion to have the petition dismissed in the interest of justice. A motion schedule was then set. The probable cause hearing has been held in abeyance pending the determination of the motion.

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

The boy’s attorney contends that his client is not a risk to society and has already engaged in a sex offender risk assessment and counseling. Additionally, that removing the boy from his present setting would not serve the goal of rehabilitation, but instead would cause great harm. In support of the motion, the party submitted the affidavits of several doctors and the boy’s adoptive parents.

The psychologist states that she met with and examined the boy. She also spoke with the boy’s parents. She consulted, by phone, the boy’s treating physician and she reviewed the triennial evaluation from the boy’s school district. She also read a letter from one association. She further reviewed an occupational therapy report from rehabilitation.

The psychologist’s assessment of the boy is that he is mildly retarded and has developmental, physical, cognitive and emotional deficiencies. She describes the boy as a follower, not aggressive, and has difficulty asserting himself to get out of negative situations.

The psychologist also explained that the boy’s history does not present with any risk factors towards sexually acting out and, other than the disparity in age between the boy and the complainant. She indicates that the probability that the boy forced another child into a sexual situation is minimal. She further indicated that placing the boy into a residential treatment facility could cause the boy to suffer from feelings of abandonment, which would be overwhelming for him and could result in acting out behavior. She did recommend that the boy receive specialized treatment surrounding issues of sexually appropriate behaviors and that weekly counseling with the boy and parents has already been initiated.

The affidavit of a psychiatrist was also submitted. The psychiatrist states that he has been the boy’s treating psychiatrist for a long time and the boy participates in interactive psychotherapy weekly. The psychiatrist further states that the boy is mildly retarded, extremely attached and highly dependent on his family. The psychiatrist shares similar opinions as the psychologist, in that, removal of the boy from his family would be extremely harmful to his emotional well-being, would have a psychologically devastating effect, the boy would undoubtedly suffer from feelings of abandonment and would likely cause depression and suicidal behavior.

The psychiatrist indicates that in their counseling sessions, the issue of sexual appropriate/inappropriate acts is being addressed and the boy continues to be cooperative in sessions.

The affidavit of the boy’s parents repeat that it would be in the boy’s best interest to remain in his present environment, removal of the boy from his environment would be harmful, and the boy receives therapeutic services from two therapists. The therapists state that they will insure the boy’s weekly attendance to his therapy sessions.

In their opposition, the agency contends that the matter should not be dismissed and that the court should proceed to the probable cause hearing. The agency bases their opposition upon the seriousness and conditions of the sex crime, the need to protect the community, the extent of harm caused to the complainant and the history, character and condition of the boy.

The agency further 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 the boy’s actions.

The agency also 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 agency is the history, character and condition of the boy. Because the boy is described as a follower, the agency fears that he may be lead astray again in the future.

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

Consequently, the court ordered to grant the boy’s motion to dismiss the petition in the matter.

It is very alarming that in a very young age there are individuals who engage in sexual activities. Whenever your daughter or son suffers from an incident where sexual abuse is concern, you can ask legal help from the Nassau County Sex Crime Lawyer. If you prefer to have a Nassau County Criminal Attorney simply call Stephen Bilkis and Associates.

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