Should Flexibility Be Adopted In Cases Where Minors Are Engaged In Conduct Involving Touching or Exposing Sex Organs ?
In In re Donald R., 343 Ill. App. 3d 237, 796 N.E.2d 670, 277 Ill. Dec. 584 (2003), the Appellate Court, Third District, recognized this and departed from E.R.E. and A.J.H.
The court upheld the respondent's adjudication for sexual exploitation of a child, reasoning that it was not implausible for the trier of fact to infer from the circumstances that a 16-year-old boy exposed his penis to a 6-year-old girl for the purpose of sexual gratification. Donald, 343 Ill. App. 3d at 244.
Justice Holdridge, in his special concurrence, warned against adopting an inflexible rule that assumes that all minors have noncriminal reasons for engaging in conduct involving the touching or exposure of sex organs. Donald, 343 Ill. App. 3d at 247-48 (Holdridge, J., specially concurring).
He urged that courts consider the particular facts of each case and apply a case-by-case approach. Donald, 343 Ill. App. 3d at 248 (Holdridge, J., specially concurring).