High school student arrested for masturbating in art class

[Miles]

• "Here's what happened, according to DISD police documents:
  
  A teacher at W.T. White High School in northwest Dallas approached a student's desk yesterday to check on his art project when she noticed him staring off into space. As the teacher tried to get his attention, the student pulled up his shirt and exposed himself.
  
  The student began to moan and said "aye mami" before beginning to masturbate fervently in front of the teacher and classmates - 30 students, ranging from 14 to 17 years old.
  
  The teacher was unable to stop the student from his continued masturbation and ran out of the classroom to get help from school police. The teacher told investigators that several students later told her "that was very scary," the police documents say.
  
  Martin Guerrero, 17, . . . was arrested yesterday on a felony charge of indecency with a child (the child being his classmates). He's being held in the Dallas County jail on $5,000 bail."
  
  source

But considering the applicable Texas law in bold below, isn't the charge bogus?

• Definition of Indecency with a Child - Texas Penal Code Section 21.11
  
  § 21.11. INDECENCY WITH A CHILD.
  
  (a) A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person:
  
  (1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
  
  (2) with intent to arouse or gratify the sexual desire of any person:
  
  (A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or
  
  (B) causes the child to expose the child's anus or any part of the child's genitals.
  
  (b) It is an affirmative defense to prosecution under this section that the actor:
  
  (1) was not more than three years older than the victim and of the opposite sex;
  
  (2) did not use duress, force, or a threat against the victim at the time of the offense; and
  
  (3) at the time of the offense:
  
  (A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
  
  (B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.
  
  (c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
  
  (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
  
  (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
  
  (d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.
  
  source

Not that I condone masturbating in class, but this seems way overblown, including just bringing the law into the incident. A whole lot of over reaction.

[Miles]

are you disagreeing with me? or with the legal system?

Because, according to the legal system, even if an affirmative defense applies perfectly, you still have to go to trial.

With you. Not at all well versed in law or criminal procedures, I have to ask how you know it has to go to trial? As I read, "(b) It is an affirmative defense to prosecution under this section that the actor: " it can very well mean that the listed provisions are enough to prevent prosecution in the first place.

Further, he technically does not meet the requirements for this defense since(me having read it again) it required that the child is of the opposite sex, and not all of the students in the classroom were.

Now that's something I missed. Good catch! It would appear that the (b) affirmative defense provision is inapplicable.

[FinalEnigma]

are you disagreeing with me? or with the legal system?

Because, according to the legal system, even if an affirmative defense applies perfectly, you still have to go to trial.

With you. Not at all well versed in law or criminal procedures, I have to ask how you know it has to go to trial? As I read, "(b) It is an affirmative defense to prosecution under this section that the actor: " it can very well mean that the listed provisions are enough to prevent prosecution in the first place.

Further, he technically does not meet the requirements for this defense since(me having read it again) it required that the child is of the opposite sex, and not all of the students in the classroom were.

Now that's something I missed. Good catch! It would appear that the (b) affirmative defense provision is inapplicable.

yeah...I missed it the first couple times I read it - but just informationally, let me see if I can find something to show what I'm saying about an affirmative defense.



this explains what an affirmative defense is somewhat:
http://www.expertlaw.com/forums/showthread.php?t=76570

based on the above page, you assert your affirmative defense when you plead. pleading 'not guilty by reason of insanity' is using an affirmative defense.


also,

An affirmative defense is not a finding of not guilty, it is just that, a defense. It is up to the trier of fact, be it judge or jury to decide.

so you can't just use an affirmative defense and not have a trial. what they mean by affirmative is that you are asserting some additional fact or facts to mitigate or negate the charge(like ' he was trying to kill me' as why you shot somebody). You then have to prove that the affirmative defense applies.

[Miles]

Thanks for the leg work, FinalEnigma. It's nice to know the facts, and I obviously stand corrected.

[open mind]

I think a felony charge is way too extreme for this case. A more appropriate charge would have been public indecency. Even then an adequate punishment would be suspension and some psychiatric help. This whole throwing people in jail for every offense is just ridiculous. More times than not a person could just use some psychiatric counseling. Jail time is just going to make the person bitter and be more careful about not getting caught.

[Kral]

A felony for this is overly extreme I think.

What he did may be offensive, but I don't think that it is something that justifies what would be effectively destroying his future life were he convicted.