In re K.A.

K.A., a twelve-year-old, middle-school boy, committed "inappropriate acts" outside his school, for which he was adjudged delinquent under a Vermont statute prohibiting lewd acts relating to prostitution. The charges stemmed from a school-yard game of four-square: "S.K." and K.A. were friends. K.A. approached, said his hands were cold, and asked to put his hands in her jacket pockets. S.K. said no, but K.A. reached his hands into her pockets anyway. Then K.A. began walking backward towards a snowbank a few feet away, pulling S.K. with him by her pockets. As he pulled her, K.A. pressed against S.K. and told her to kiss him or he would throw her in the snowbank. S.K. again said no and tried to remove his hands from her pockets. Then, the trial court found, K.A. tried to get his hands under the waistband of the girl’s jeans while his hands were still in her outside coat pockets. S.K.’s belt prevented K.A.’s hands from going down the front of her pants. Ultimately, K.A. did not kiss S.K. or throw her into the snowbank; instead, he pulled her back towards the school, again using his hands in her pockets as leverage. As the two neared the building, a teacher saw them and yelled at K.A. to take his hands out of S.K.’s pockets. The State filed a delinquency petition alleging that K.A committed simple assault and engaged in a prohibited act, lewdness. The trial court granted the judgment of acquittal with regard to simple assault, but not with regard to engaging in lewdness. K.A. argued on appeal to the Supreme Court: (1) the evidence presented at trial was insufficient to support the trial court’s conclusion that, beyond a reasonable doubt, K.A. attempted to commit a prohibited lewd act; and (2) the trial court improperly amended the charge from committing a lewd act to attempting to commit a lewd act. The Supreme Court concluded that the charge against K.A. failed for insufficient evidence that his actions were an attempt to engage in a lewd act of prostitution. “Discretion to prosecute persons who have committed crimes is one thing; prosecutorial discretion to decide whether conduct is criminal in the first instance is another. The latter invites arbitrary enforcement and contravenes the separation of powers inherent in our constitutional government.” View "In re K.A." on Justia Law