Because of a case I have been working on, I have recently been looking into young children being suspended and or expelled from schools based on charges that they broke school rules with regard to sexual behavior. To this mix is the story coming out of Aurora, Colorado, involving a lively young boy who has been suspended for the “sexual harassment” of one of his female students. What sort of harassing behavior did the boy engage in? He was found to have been singing LMFAO’s song, “I’m sexy and I know it.” While school officials assert that the boy was singing the song to a girl, the boy’s mothers states that he was simply singing in the lunch line. My question is, “Does it matter?”
I would argue that even if the boy was singing the song to the little girl, his actions do not constitute sexual harassment. According to Equal Rights Advocates, there are two types of sexual harassment that occur in schools. The first is quid pro quo. This occurs where a person in authority offers a student some advantage in exchange for sexual favors, i.e. if you sleep with me, I’ll make sure you make the cheer-leading team. There is certainly no argument that this occurred between the young Colorado student and the female to whom school officials assert he crooned his song.
The second type of sexual harassment is hostile environment. This occurs where due to unwanted comments, touching, or gestures, a student is prevented from benefiting from their education. It is important to note that sexual harassment is perceived through the eyes of the person receiving the message, not the person who delivered it. Further, this type of harassment is almost always on-going. It occurs over an extended stretch of time. The exception to this is egregious examples of sexual harassment such as sexual battery or the like.
Here, once again, the facts do not support this six year-old being suspended. First, it is hard to imagine that the girl who was being serenaded, if you believe school officials, had her education experience so tainted that she was unable to benefit from instruction. Secondly, although I do not have access to all the facts, I find it difficult to believe that the young girl even perceived the song as a sexual overture. Such a thought is not in the nature of young children of this age.
School officials need to be mindful that the adult context of sexual offenses does not translate well at the elementary school level. Another California case illustrating this trend occurred in Hercules, California where at Port Lupine Elementary School, a first grader was suspended for sexual assault when, allegedly, his hand grazed the other boys private areas during a game of tag. The parent of the suspended child posted about it on school law blog and a massive uproar ensued, and the school eventually backed down.
It is important to note that the education code that defines what sexual battery is refers to specific sections of the California Penal Code. In order for a child to guilty of sexual battery, they must have committed one of five VERY serious crimes.(n) Committed or attempted to commit a sexual assault as defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or committed a sexual battery as defined in Section 243.4 of the Penal Code.
(n) Committed or attempted to commit a sexual assault as defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or committed a sexual battery as defined in Section 243.4 of the Penal Code.
Section 261 is the law regarding forcible rape. Section 288 is a lewd or lascivious act against a child. Section 266c is obtaining sex through false pretenses of by threat. Section 289 is forcible penetration with a foreign object. Section 243 is sexual battery. It is important to note that nearly all the statutes include a requirement that the action must have been undertaken for the purpose of sexual gratification, which at most ages of elementary school students is simply not possible. Generally, it is acknowledged that a person must have begun puberty to possess such an intent.
If your child has been suspended and or is up for expulsion due to a sexually related offense, it is important for you to protect your child’s rights. Having a suspension or expulsion for sexual violence or harassment on your child’s academic record can have far reaching consequences. Please contact The Law Office of Gregory R. Branch if your child is facing such a disciplinary action.