In a disturbing post titled "Sodomy of Boys is A-OK," Dr. Helen expresses dismay over a prosecutorial decision that sodomizing young boys with broomsticks is not a sexual offense -- unless there is "evidence the defendants are homosexuals."

In other words, whether sexual assaults are sex crimes depends on whether the perp belongs to a particular sexual identity category?

In a comment, I asked,

Suppose a group of gay men had done the same thing to girls. Would their homosexuality give them a similar pass?

Except I don't think it would. One of the ironies here is that for years I have been told that rape is not about sex, but it involves things like "power" and "control."

But I guess in the twisted world of PC thinking, such power and control issues only apply to interactions between males and females.

Ironically, the presence of a sexual motivation could arguably be said to be a mitigating factor to the extent that it involved an irresistible impulse. An offender driven and motivated by his sex drive to do something like this could be said to be less deserving of punishment than someone who committed the same act in the absence of sexual desire. (In sexual cold blood, as it were.)

If we analogize to murder, the rule has long been that cold blooded murders are the most malicious, and that the people who murder as a result of passion are less culpable.

Why would child molesting be less culpable if done by an adult with no sexual interest in children? Suppose hypothetically that a man pulls down children's clothing and plays with their genitals, not to turn himself on but simply to upset the children (because, say, he wants to annoy their father). Does the latter crime become ordinary assault because of the lack of sexual interest?

Something does not make sense to me.

(As it usually doesn't . . .)

MORE: The "lack of sexual interest" defense to sex crime charges might be interesting to raise as a legal defense. If a police officer can pose as a 14 year old girl to entrap child molesters, then why can't a suspect pose as a child molester in order to attract police officers?

(Hmmm.... I know I'm behind the times, but police aside, is it legal for ordinary adult citizens to pose as 14 year olds?)

CORRECTION: Researching the law, I see that in California (and probably other jurisdictions) sexual gratification in no way diminishes the nature of a sexual offense, but it is a necessary element of the crime:

288. (a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

If that's the law in Arizona, the DA's position would appear to be well-founded, like it or not.

MORE: In addition to lewd conduct with a child, Section 289 (a) of the California Penal Code criminalizes sexual penetration, as follows:

(i) Except as provided in Section 288, any person over the age of 21 years who participates in an act of sexual penetration with another person who is under 16 years of age shall be guilty of a felony.
(j) Any person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she shall be punished by imprisonment in
the state prison for three, six, or eight years.
(k) As used in this section:
(1) "Sexual penetration" is the act of causing the penetration,
however slight, of the genital or anal opening of any person or
causing another person to so penetrate the defendant's or another
person's genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument,
or device, or by any unknown object.
(2) "Foreign object, substance, instrument, or device" shall
include any part of the body, except a sexual organ.

(I'm afraid whether the word "abuse" includes "hazing" is a question for the experts.)

AND MORE: As far as I can determine, here are the relevant Arizona statutes:

13-1401. Definitions

In this chapter, unless the context otherwise requires:

...

2. "Sexual contact" means any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.

13-1404. Sexual abuse; classifications

A. A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fifteen or more years of age without consent of that person or with any person who is under fifteen years of age if the sexual contact involves only the female breast.

13-1410. Molestation of child; classification

A. A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child under fifteen years of age.

So the "correction" above would only apply in California (and even there, only to a 288 (a) charge of lewd and lascivious acts with a child).

MORE (03/07/06): Looking over the updates, I see that I might not have made it clear that the Arizona prosecutor's analysis was wrong under Arizona law, and even under California law (except the statute prohibiting lewd acts with a child).

Sexual gratification is not an element of the crime, and therefore, the sexual orientation of the perpetrator would be irrelevant.

(In real life, however, prosecutors often examine the likelihood of conviction. But that's a practical as opposed to a legal issue.)