Schoolkids: consensual sex or assault

When a 12-year-old girl ran crying to a teacher and spilled out in disturbing detail her sexual encounters with an eighth-grade boy, administrators reacted quickly - punishing both students. The school initially assessed the act as a consensual incident between two students and suspended both for three days, then sent them to the same alternative school for 60 days. But the incident in the bathroom wasn`t just a disciplinary matter. According to state law, it was sexual assault. As new federal legislation focuses attention on the way schools report crime on campus nationwide, the Tejeda Middle School case illustrates what can happen when a school`s interpretation of an incident conflicts with the law. Sometimes educators think in terms of rules violations when police might quickly see prosecutable crimes. The girl`s parents said school officials rushed to punish their daughter and didn`t stop to consider her age or the law. "All they`re concerned about is disciplining her," the girl`s father said. "The school administration should know that she`s not old enough to consent." North East School District officials said the October case is the first time they`ve dealt with a 12-year-old student having sex on campus and acknowledged school staff wasn`t aware of the consent law. Complicating the issue is the fact the sex wasn`t coercive or violent, they said. "While the state law sees her as a victim ... she knowingly violated our student code of conduct," said Laura Calderon, district spokeswoman. "That`s why she`s in an alternative middle school. It`s a very unique situation all the way around." The boy and girl, now both at the alternative school, are in different classes and have no contact, Calderon said. Because of the strict nature of the school, it`s impossible for the two to be alone, she said. However, the pair do see each other at lunch, the girl said. "It`s scary," she said, adding that several students at the school have asked her about the boy and what happened at Tejeda. "He sits behind me and burns a hole in my head." The district is helping the parents locate counseling for the girl. Meanwhile, the parents say they understand the school`s need to punish their daughter - after all, she and the 14-year-old boy both lied to sneak into the school early and had sex on campus. But they said the school was too harsh and didn`t consider her needs in sending her to the same school as the boy she`s now accusing of aggravated sexual assault. "I don`t think that it`s fair for her to have to see this boy that she`s frightened of every day," her mother said. Age of consent The middle school students met on a Friday morning, during an hourlong bus ride to Tejeda from their neighborhood, which is closer to Driscoll Middle School, where enrollment is capped. Their intimacy quickly escalated from kissing on Friday to sex on the boys` bathroom floor Tuesday. The naivetй of the pair was obvious; that Friday they played rock-paper-scissors to decide which bathroom to kiss in. Regardless, a 12-year-old child can`t consent to sex, according to Texas law. Sexual consent generally can`t be granted until a person is 17. If a 12-year-old girl has sex with a 14-year-old boy, it is sexual assault, Bexar County Assistant District Attorney Jill Mata said. The state education code compels schools to notify the school district police and the municipal police regarding possible sexual assaults. The offense would count against the school when "persistently dangerous" campuses are identified if school officials later determine it was sexual assault and expel the boy. A day after learning about the incident, the staff at Tejeda contacted the school district`s police department, Calderon said. The chief immediately raised the legal issue of the girl`s age, and the next day a report was filed with the San Antonio Police Department, Calderon said. However, a spokeswoman at the San Antonio Police Department said the sexual assault report being investigated resulted from a call by the girl`s parents, who filed the complaint one day after the district was told. As of Tuesday, the Police Department still was investigating the complaint and hadn`t turned over its files to the district attorney`s office. Although the law is clear, not everyone agrees that sex between a 12-year-old and a 14-year-old is sexual assault. The school treated it as consensual sex between students - considered by the district as a category four offense, the least-serious level. The district`s code of conduct calls for a student to be placed in an alternative education program for the violation, though Bruce Schneider, executive director of pupil personnel services, said a student`s maturity is considered. "We like to say we have zero tolerance, but we don`t do it with zero intelligence," he said. Schneider said the law regarding the age for consensual sex doesn`t have any bearing on school policy. "We do not have anything to do with what a law may state," he said. "We follow our policies and procedures." If the sex had been determined to be rape, the offender would have been expelled - rape is a category one offense, the highest level - and the crime would have been included in an annual discipline data report for the Texas Education Agency, as well as police. This incident comes on the heels of published reports questioning whether school districts under-report crime. Under the new federal No Child Left Behind act, states are responsible for identifying unsafe schools. In Texas, a 1,000-student campus could be tagged as "persistently dangerous" if administrators expelled at least three students for murder, rape, assault or any other felony act for three consecutive years.

Schools long have been accused of covering up violent campus crime, and safety experts say the new federal law may exacerbate the problem. Michael Witkowski, a criminal justice associate professor at the University of Detroit Mercy, said the practice of trying to make schools appear safer than they are by under-reporting crime is used all over the country. "They don`t put everything that happens on the record because there is too much of it," he said. So what happens when a school`s interpretation of an incident conflicts with the law? A local attorney who specializes in representing parents in lawsuits against schools said the school handled the situation properly. Karen Seal, a former educator and administrator, said the district didn`t have an obligation to notify police because what happened between the middle school students was inappropriate but not illegal. "I think they probably used the best judgment they could under the circumstances," Seal said. "It`s a close call with the difference of their ages." Because of the incident at Tejeda, the school district is making sure all teachers and principals understand the consent law, Calderon said. It`s also working to limit student access to school buildings outside of classes, she said. The encounter The girl was new to the area, had few friends and was struggling to fit in at a school far from her neighborhood. In a straightforward manner, devoid of tears but peppered with the nervous giggles of a young girl discussing a grown-up topic, she told her story in a recent interview. No one would sit next to her on the bus, she said, but on that Friday the older boy sat next to her and shared a secret about a sexual encounter he`d supposedly had with an 18-year-old. Minutes later he asked her to be his girlfriend. The girl talked to school officials five days later, after she heard other students talking on the bus about her bathroom encounters. "Why did you go tell everybody?" she reproached the boy. "We`re through." By the time the bus reached campus, she felt so embarrassed and overwhelmed that she ran crying to a teacher who asked her if she was all right. "`No,` I screamed, `No,`" she recalled. "I collapsed on the floor and I screamed, `Nothing`s all right.`" A parents` primer About 2 percent to 4 percent of 12-year-old girls nationwide have had sex, said Tamara Kreinin, president and CEO of Sexuality Information and Education Council of the United States, an organization that promotes comprehensive sex education. Those that do have sex rarely do it in a school bathroom, she said. "Younger teens aren`t having a lot of sex," she said. "You want to look at this as perhaps a cry for help from both the boy and the girl." Part of the problem is America has dropped the ball on sex education, Kreinin said. Teachers cover reproduction and the physiological aspects of sex but don`t spend enough time on relationships, intimacy and emotions, she said. She doesn`t support disciplining the children through the legal or school system. "I don`t see this as a cause for punishment," she said. "This is a cause for compassion, education and counseling." Michelle Stiller, a director of Alamo Children`s Advocacy Center, said preteens, even if physically mature, lack developmental and emotional maturity needed to give consent. "Specially when you`re looking at (relations) with an older teen," Stiller said. "There may have been some underlying pressures that we`re not aware of." She said parents can help keep their children from having sex at such a young age by communicating with them constantly, starting when they`re babies. Parents always should listen to their children, answer questions and offer guidance. "As a parent, you need to listen to their feelings," Stiller said. "But also, they`re counting on you to teach them what`s OK and what`s not." Pamela Hill, a human sexuality professor at San Antonio College, said most children age 12 aren`t interested in sex. Sexual activity among young people generally starts between the ages of 14 and 16, she said. But children are becoming aware of sex at a younger age because "what you see on TV is getting pretty near close to pornography." She said a combination of curiosity about what they see on the small screen and a lack of parental guidance could lead to dangerous experimentation. "If we prepared them with more information, they wouldn`t satisfy their curiosity in all the wrong ways," she said. The Tejeda girl`s mother said she spoke to her daughter about sex but now realizes she left out one crucial piece of advice: "At any point, you can say `no` and they need to stop."