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COMMENTARY
Legal Nuances of Child Sexual
Experimentation vs. Grooming
Helene M. Weiss and Daniel Pollack｜ December 18, 2024
It is challenging for parents and the state to oversee and regulate sexual behavior
between young children. While every child is unique and grows in their own way,
there is a general range of behaviors characteristic of child development. From a
legal and policy perspective, what is the difference between age-appropriate child
sexual experimentation and actions which might be characterized as child-on-child
sexual grooming? As Professor Daryl Higgins asks in a recent article: “At what
point does sexual play and natural, typical developmental exploration become
problematic? Or harmful? Or abuse?”
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Without a clear understanding of this distinction, children may be unnecessarily
harmed. This can happen by inappropriately being accused of criminal behavior, or
not being appropriately accused of criminal behavior. It can also occur when a
child, for psychological or physiological reasons, is unable to follow a normative
age-appropriate path of child development. Absent clarity, parents, and others who
care for children, are unable to know exactly how to monitor children's behavior.
It is expected that children and adolescents will be inquisitive of their own
sexuality. Especially with the onset of puberty and the surge of hormones, this
desire only increases. So, what do attorneys need to know about typical child
sexual development, and what questions should they ask if confronted with a case
in which it is revealed that a child’s sexual behavior may not seem normative?
The distinction between child-on-child grooming and child sexual experimentation
can be found in the context, the intent and the potential harm to the child.
According to the American Academy of Pediatrics Council on Child Abuse and
Neglect, “sexual” behaviors in young children are a common and normal part of
childhood development, and may start to occur between the ages of three and six
years old. However, there are differences in behaviors that are developmentally
expected, and behaviors that may be a signal of a more serious problem.
Children are typically driven by curiosity, and can be expected to touch, pull, rub
or poke their genitalia as they become aware of their own bodily
autonomy. Parents should keep in mind that these exploratory actions are usually
motivated by a child’s inquisitive nature rather than sexual
motivation. “Normative” behavior among two- to six-year-olds may include:
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showing genitals to peers, trying to see adults naked, or touching their own genitals
in private or public. Generally, these sorts of behaviors are non-criminal if they
involve mutual consent, age-appropriate exploration, and there is no coercion or
significant power imbalance.
There are a range of other behaviors that are less common or rarely normal among
young children, and may be indicative of a child who is being abused. These
uncommon and rare acts include asking a peer or adult to engage in specific sexual
acts, inserting objects into their own genitals, touching animal or household pets’
genitals, sexually aggressive behavior that results in physical pain, sexual behavior
that involves coercion, and any sexual behaviors involving children who are four
or more years apart.
When these rare behaviors are present, it is important for parents and trusted adults
to act swiftly. There may be other signs present that a child who is expressing
abnormal sexual behaviors may be experiencing sexual abuse, such as anger or
aggression, avoiding certain adults, struggling to concentrate in school, or a
withdrawal from friends and family. In situations where these factors are present,
the encounters may be considered abusive or criminal under the law. When a
parent or caregiver identifies these signs, they should have an open and honest
conversation with the child and consider involving a child therapist or psychologist
as soon as possible.
Teens, in addition to children, may also participate in age-appropriate exploration,
but the age gap between the teens involved (as well as the nature of the behavior)
may be determine whether or not that behavior is illegal or consensual. “Romeo
and Juliet” laws commonly concern close-in-age exemptions for sexual activity
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that would otherwise be considered illegal. In particular, New York has a five-year
rule that allows for a reduced penalty in cases that involve sexual activity between
a child who is fifteen years-old or older and an adult who is within five years of
their age (such as a fifteen-year-old and a nineteen-year-old).
The American Academy of Family Physicians advises that sexual activity between
two minors who are four or more years apart in age is always age-
inappropriate. There may also be civil liability concerns for institutions with an in
loco parentis duty that do not properly supervise or separate children who are four
or more years apart, as this age gap presents obvious mental and physical
developmental differences between children, and increases the risk of abuse to
younger children. Dr. Sharon Cooper, a forensic pediatrician and expert witness
involved in the treatment of children has stated that “in the United States, four or
more years of an age difference is the standard for a sexual encounter between
children to become a crime.” Dr. Sharon Cooper, M. Lewis v. State of New York,
46, Oct. 4, 2023.
Generally, when a child’s behavior falls into the less concerning and “normal”
category of sexual exploration, these actions can be readily redirected and should
not be a cause for parental concern. Parents who are aware that their young child
is engaging in these expected and exploratory behaviors should discuss body safety
by using appropriate language for body parts and reinforcing respect and
consent. The American Academy of Pediatrics advises that children who
understand the correct terminology for their body parts – including genitalia – are
better equipped in identifying and communicating “OK touches” vs. “not-OK
touches” to a trusted adult in their life. Further, making up names for body parts
can give children an impression that their genitalia is secret, bad, or something that
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should not be discussed, in turn creating further stigma around these critical
conversations.
Parents should also be mindful not to force affection on children, even with family
members. Such forced affection may teach children that they do not have control
over their own bodies. In turn, it is unsurprising that children who feel in control
of their bodily autonomy are statistically less likely to become victims of sexual
predators.
Distinguishing between age-appropriate sexual exploration and problematic or
harmful behaviors among children is critical for parents, legal guardians,
educators, caregivers, and legal professionals. Recognizing the difference between
normative behaviors and signs of concern can assist adults in taking the
appropriate measures to educate children about body safety and consent, while
addressing potential risks. When in doubt, parents, caregivers, or professionals
who are seeking answers regarding normative vs. abusive child-on-child sexual
encounters should not hesitate to contact a reputable clinician, therapist or attorney
who specializes in child abuse.
Helene M. Weiss is a Partner at the Marsh Law Firm in New York, and Special
Professor of Law, Maurice A. Deane School of Law, Hofstra University.
Contact: heleneweiss@marsh.law.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of Social
Work. He was also a Commissioner of Game Over: Commission to Protect Youth
Athletes, an independent blue-ribbon commission created to examine the
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institutional responses to sexual grooming and abuse by former USA Gymnastics
physician Larry Nassar. Contact: dpollack@yu.edu.
Original link: https://www.law.com/thelegalintelligencer/2024/12/18/legal-
nuances-of-child-sexual-experimentation-vs-grooming/