Unruly schoolboys or sex offenders?

Susan Goldsmith, The Oregonian, July 22, 2007

The two boys tore down the hall of Patton Middle School after lunch, swatting the bottoms of girls as they ran -- what some kids later said was a common form of greeting.

But bottom-slapping is against policy in McMinnville Public Schools. So a teacher's aide sent the gawky seventh-graders to the office, where the vice principal and a police officer stationed at the school soon interrogated them.

After hours of interviews with students the day of the February incident, the officer read the boys their Miranda rights and hauled them off in handcuffs to juvenile jail, where they spent the next five days.

Now, Cory Mashburn and Ryan Cornelison, both 13, face the prospect of 10 years in juvenile detention and a lifetime on the sex offender registry in a case that poses a fundamental question: When is horseplay a crime?

Bradley Berry, the McMinnville district attorney, said his office "aggressively" pursues sex crimes that involve children. "These cases are devastating to children," he said. "They are life-altering cases."

Last year, in a previously undisclosed prosecution, he charged two other Patton Middle School boys with felony sex abuse for repeatedly slapping the bottom of a female student. Both pleaded guilty to harassment, which is a misdemeanor. Berry declined to discuss his cases against Mashburn and Cornelison.

The boys and their parents say Berry has gone far beyond what is necessary, criminalizing actions that they acknowledge were inappropriate. School district officials said Friday they had addressed the incident by suspending the students for five days.

The outlines of the case have been known. But confidential police reports and juvenile court records shed new light on the context of the boys' actions. The records show that other students, boys and girls, were slapping one another's bottoms. Two of the girls identified as victims have recanted, saying they felt pressured and gave false statements to interrogators.

The documents also show that the boys face 10 misdemeanor charges -- five sex abuse counts, five harassment counts -- reduced from initial charges of felony sex abuse. The boys are scheduled to go on trial Aug. 20.

A leading expert called the case a "travesty of justice" that is part of a growing trend in which children as young as 8 are being labeled sexual predators in juvenile court, where documents and proceedings are often secret.

"The disproportionality of the charges is absurd," said Phillip Esplin, a forensic psychologist who has researched child sex abuse for the National Institutes of Health.

"My question is, why this would constitute a sexual offense, as opposed to something inappropriate that should have been dealt with within the school -- not within the criminal justice system."

To Rhonda Pope, mother of Christian Richter, 13, a girl named in the court papers as one of the victims, the charges are justified.

"Slapping somebody on the butt is sexual harassment, and it is a crime," she said. "Considering what was going on and that my daughter was offended, it is a crime. And it's not OK."

Insisting that the charges are an overreaction, Mashburn's attorney, Mark Lawrence, has worked to bring as much public attention as possible to the story. Lawrence, himself a former Yamhill County prosecutor, and his client briefly appeared on commentator Bill O'Reilly's cable TV show.

"I look at this from a prosecutor's perspective and a defense attorney's perspective, and believe this is truly insane," Lawrence told The Oregonian. "I do not condone this behavior -- it was inappropriate. But it is not criminal."

"Slap butt day"

After they were brought to the principal's office on Feb. 22, the boys were questioned by Vice Principal Steve Tillery and McMinnville police Officer Marshall Roache.

In the first of two police reports, Roache noted that Cornelison had admitted he'd poked a girl's breast. Mashburn said he also had poked girls in their breasts in the past.

Both boys said in interviews with The Oregonian that they'd been taught to tell the truth and did so in the office that day.

Several girls told Roache and Tillery the boys had swatted their behinds on what they declared to be "slap butt day," according to the first police report. Some girls told police they did not like it and had asked the boys to stop. But a follow-up report filed four days later by Roache makes the situation seem much foggier.

All told, Roache interviewed 14 students besides Cornelison and Mashburn. Seven confessed to bottom-swatting, including one girl who described it as "a handshake we do." Two of the alleged victims said they had swatted boys' buttocks themselves.

"She will touch Cory after he touches her first," Roache wrote in the report.

This second round of interviews took place while the boys were in detention. A day later, the juvenile court held a hearing on whether the boys should be released. The courtroom was packed with Patton students and families of both boys -- many were crying. The boys were there, too, in shackles and jail outfits.

Two of the alleged victims spontaneously offered to testify on behalf of the boys. Under oath, they told the judge they were friends and did not feel threatened by them. The two girls also testified they felt compelled, during the initial interviews with Tillery and Roache, to say things that weren't true.

"Well, when the (vice) principal asked me stuff, I kind of felt pressured to answer stuff that I was uncomfortable, and that it hurt, but it really didn't," the girl said, explaining that she didn't think anything sexual went on.

The boys were released. But the judge ordered them out of school, required constant parental supervision and barred them from contacting friends. Any deviation, he said, would result in more time in juvenile jail.

The boys' families could hardly believe the situation. Neither boy had ever been in trouble. Now, they faced multiple felony counts. Their parents had to figure out how to calm two boys who they said were traumatized by their time in the Yamhill County Juvenile Detention Center.

"I was freaking out," Cornelison explained, wiping away tears. "The people were mean. My roommate, a 17-year-old, kept telling me I was never going to get out."

For Joe Cornelison, a single dad who is a press operator for the McMinnville News-Register, the prosecution made no sense. He scrambled to come up with $ 10,000 for legal fees and knows he's going to have to pay more in the coming months.

"I don't understand how they can do this," he said. "I just tell Ryan to trust me -- I am working on this."

Scott and Tracie Mashburn -- he works at a print shop, and she is a hairdresser -- also have struggled to pay for their son's defense, borrowing $ 10,000 so far, they said.

"This is scary," Tracie Mashburn said. "This is a child with potential who wants to grow up and go to college, and his life could be done now."

Added her husband: "We'd all be in jail if everyone got arrested for this kind of stuff."

Both families insist they will not take any plea deals and will fight the charges.

Case disturbs experts

Tillery, Patton's vice principal, said he was not authorized to comment. School district officials said Friday that they take sexual abuse seriously.

"We followed our policy and set a five-day suspension," the district superintendent said in a statement. "The district played no role in the legal proceedings that followed."

Roache, the McMinnville police officer, declined to discuss the case.

His supervisor, Capt. Rob Edgell, would not discuss specifics but said, "We totally support everything that has gone on in this case."

Outside experts contacted by The Oregonian found the circumstances unsettling.

While it's true that a great deal of child sex abuse by adults goes undetected and unpunished, cases like the one in McMinnville reflect society's tendency to overreact, said Richard Ofshe, author of "Making Monsters: False Memories, Psychotherapy and Sexual Hysteria."

"The problem is that, like most good things, they can go to the extreme, and the extreme has been reached in several ways," said Ofshe, a professor of sociology at the University of California at Berkeley. "The whole question of what constitutes sexual abuse gets defined and redefined to the point where it's absurd."

It is difficult to quantify the number of children charged nationwide with sex crimes arising from misconduct in schools. According to the Department of Justice, juvenile crime has fallen steadily since 1998. Between that year and 2002, the only category of juvenile arrests that has grown is sex offenses other than forcible rape or prostitution. Those arrests have risen 9 percent.

Researchers at the American Association of University Women seven years ago published a landmark study of middle school harassment and bullying, finding that eight of ten students surveyed had experienced some form of unwanted sexual behavior at school, primarily verbal. But half also admitted harassing somebody themselves -- testament to the basic ambiguities of middle school.

"It's important to pay attention to this in schools because this is where people develop their attitudes and beliefs about what's appropriate," said Catherine Hill, research director at the AAUW. "This is modeling what we expect in a public setting."

Rachel Negra, Cornelison's attorney, called the initial felony counts from Berry's office "ludicrous."

"These boys (were) charged with the same crime as a man who pulled a girl off the sidewalk and forced her to have sexual contact behind a bush," Negra said.

Christian Richter, one of the alleged victims, said, "I think it's a crime, but I don't think it's that serious."

"I do believe it should not have happened," she said. "Everybody knows about sex and our private parts. Our butts are our private parts, and I don't want mine touched."

Parents of two other alleged victims have told the school district they plan to sue because they face "significant expenses" for counseling to deal with the "sexual harassment and abuse."

Yamhill County, known more for its wineries and hazelnuts than crime problems, isn't the only jurisdiction in Oregon that prosecutes juveniles for similar conduct.

"We get, even in Portland, quite a few cases every year of boys who grabbed the breast or buttock of a girl in a hallway," said Julie McFarlane, supervising attorney at the Juvenile Rights Project in Portland, a public defender's office for youths. "It's like criminalizing fairly typical behavior, and I don't think the schools inform or warn them."

In the past five years, McFarlane said, her office has defended at least 10 youths charged with criminal sexual abuse for behavior she said was typically seen in school settings.

If the McMinnville boys are convicted of any of the counts of sex abuse, they will have to register as sex offenders, which could have a devastating effect, McFarlane said.

"It's basically the end of their lives," she said. "Everywhere they go and everything they do, they will have to disclose this. And these kids who do these minor offenses have to follow the same sex-offender registration requirements as someone who brutally raped someone."

The boys' attorneys have filed prosecutorial misconduct motions with the court, which will be heard Aug. 10. The motions allege the boys were hit with additional charges for refusing to accept plea deals and were unfairly selected for prosecution.

"It's either a crime warranting prosecution or it's not," said Lawrence, Mashburn's lawyer. "You can't pick out two little boys and string them up as an example."

Kicked out of school and unable to socialize with friends, Cornelison spends his days alone at home playing a military video game and wondering about his future.

"I might not even be able to go back to school next year," he said. "I just try not to think about it."