concurring:
I concur in the judgment reversing the trial court’s judgment but write separately because I see a number of other reasons to reverse in addition to those stated in the majority opinion and because I think that my writing this opinion might in some way assuage the great, if unintended, harm that was inflicted by the State upon Scott E., who, if it were not for the present ruling of this court, would be tragically branded for life as a sex offender.
The State charged Scott with three sex crimes. These crimes, violations of our statutory criminal law, namely, NRS 201.230, are commonly known as “ lewdness with a minor.” This crime is designed to punish and deter adults from engaging in sexual activities with minors and ordinarily involves an adult offender’s engaging in pederastic activities with the “intent of arousing, appealing to, or gratifying the lust passions, or sexual desires” of the molested child.1 The charge here is that eleven-year-old Scott *242engaged in three lewd acts with his eight-year-old female step-cousin. One of the charges is that Scott “touched” his cousin “on top of her clothes” on her “personal spot.” The other two charges are that on two occasions Scott exposed his penis and had his cousin touch his penis.
The formal charges of violation of NRS 201.230 do not state the times or places that these acts were alleged to have occurred, except that they took place “on or about/between [sic] December 1, 1990 and December 31, 1992.” The “complaining witness,” Scott’s cousin, was unable to testify as to when these events took place, except to say that she was eight years old at the time. His cousin’s mother was, however, able to narrow the event down to the “latter part of ’92.” It was at this time that she “caught” her daughter with Scott on the top bunk of a bed in Scott’s bedroom.2 The mother’s version of the episode was that when she opened the door of an adjoining bedroom, she was able to see four children in the room, Scott, Scott’s cousin (the “complaining witness”) and her other daughter and son. She saw that Scott was “on his stomach” and that her daughter “had her hands underneath [Scott].” Asked to explain further, the mother testified that *243her daughter’s hand was “down in the lower half” of Scott’s body. Pressed further, she described the position of her daughter’s hand as being on Scott’s “lower abdomen.” According to the mother, when the children saw her, they “acted surprised” and her daughter’s “hand came out from under Scotty.”
Scott’s cousin saw the event as happening in a manner different from that testified to by the mother.3 Scott’s cousin does not mention that her brother and sister were in the room; and she claims that it was Scott that put his hand on her rather than that it was she who touched Scott. Scott’s cousin makes it very clear that, at most, Scott touched her on her “personal spot” “on top of her clothes.”4
The mother did not witness any event relating to Scott’s supposed exposing himself to his cousin. The questioning of the girl at trial does not give any time that these events took place but does show that she believed that one event took place before the “touching” episode and one took place afterwards. The girl testified that one exposure took place in the kitchen, the other in a bedroom.
Let me assume, for the purposes of this concurring opinion, that Scott’s cousin is telling the truth and that he touched her “between the legs” rather than that she was the one who touched him, on his “lower abdomen.” Let me also assume (lie-detector results aside) that Scott exposed himself in front of his cousin. I ask rhetorically: Is this really the kind of case that calls for the filing of formal criminal charges against this little boy relating to the commission of sex crimes? What good can possibly come out of forcing these two young children to testify against each other and to testify formally in a court of law concerning childish sex *244games? Why make Scotty into an adjudicated sex criminal even if these charges had been true?5 The answer to these questions lies, of course, in prosecutorial discretion. If formal charges were to be prosecuted because of sexual activities that are charged here, it *245would seem to me that, at worst, some kind of civil petition might have been filed rather than the filing of criminal charges. If either Scott or his cousin were in need of some kind of juvenile court services by reason of supposed sexual aberrations (which seems clearly not to be the case), then some kind of child protection proceedings might have been justified, but not sex offender charges against one of the participants only.6
I file this concurring opinion in the hope that it might prevent some other young child from suffering the indignity, embarrassment and shame that was unnecessarily suffered by Scott in the present case. This is truly a no-win case. At its worst, Scott would have been permanently and totally unjustifiably branded as a sex offender. At best, Scott and his cousin would have to have undergone the trauma of participating in a formal criminal trial in which cousin was pitted against cousin and in which no outcome could have been of the slightest benefit to either one of them. The heedless filing of criminal sex offender charges has resulted in great and probably irreparable harm to Scott and in all likelihood to his cousin too. I truly hope that we will not be seeing any more of the kind of uncalled-for damage to children and the kind of waste of legal and judicial resources that is so undeniably present in this case.
One of the incidents of the sex offender charges against Scott that brings this case to the brink of absurdity is the charge that Scott had the intent to “gratiffy] the lust” of his cousin. It is senseless, if not silly, to speak of *242children of his age in these terms. The intent requirement has, however, a serious aspect to it. Absent proof of Scott’s “lascivious” intent to “arous[e]” the “passions” of his cousin, Scott cannot be convicted (“adjudicated,” in juvenile court terms) of this sex crime. There is absolutely no evidence in this record that Scott had any such intention. I would note in passing that if he had had such an intention, he was very unsuccessful in carrying out such evil schemes in light of the girl’s statement to police officers. When asked to describe Scott’s penis, she replied, “I didn’t really pay any attention.”
In addition to there being no evidence of Scott’s lascivious intentions to gratify his cousin’s “lust,” there is a complete failure on the part of the State to rebut the presumption of Scott’s incapacity as a minor to commit these sex crimes. Winnerford Frank H. v. State, 112 Nev. 520, 915 P.2d 291 (1996).
If the State is going to bring criminal charges against pre-adolescent children charged with engaging in consensual sex games, it should at least attempt to prove the essential elements of the crime. Great mischief was done by making this into a criminal case; and, in my opinion, it was irresponsible for the prosecution not to attempt to prove these essential elements of the crime.
Several witnesses testified that there were no bunk beds in the house during the “latter part of ’92,” but for the purposes of this concurring opinion, I will accept the testimony of Scott’s cousin’s mother that she observed Scott and her daughter on the top bunk with her daughter’s hand on Scott’s “lower abdomen area.” I would note that this record is filled throughout with evidence of domestic dispute and that one of the theories of the defense was that the charges were made by vindictive parents in order to hurt Scott and his family. I mention this not with any mind to “re-try” the case, but this fact does explain such things as the conflict between the mother’s story and the story of her daughter and to explain the fact that Scott passed a lie detector test on the charges made against him.
The record in this case gives me reason to believe that this child was told by someone that her testimony and the resultant adjudication of Scott’s commission of sex crimes would be beneficial to Scott because it would then permit Scott to get the “help” he needed.
It was argued by Scott’s counsel that when the girl was being examined about whether she knew the consequences of not telling the truth in Scott’s trial, she responded by saying that “Scott would get help.” This is pretty scary to me.
The formal charges accuse Scott of “touching” his cousin’s “vagina.” It is clear from the girl’s testimony that she does not accuse Scott of touching her vagina but, rather, that he touched her “between the legs” and “on top of her clothes.” I, of course, make no judgment as to whether the testimony of the mother or her daughter is correct and whether Scott touched his cousin or his cousin touched Scott. In this connection, I do not find it out of place to note that Scott passed two lie-detector tests. The polygraph examiner asked Scott “Did you ever touch [his cousin’s] vagina?” and “Has [the girl] ever touched your penis?”. He answered “No” to each of these questions. The examiner explained that “to pass, a score of +5 is needed. Scott scored +9. It is the opinion of this examiner that Scott is telling the truth.”
I suppose in today’s world, where children are often unsupervised and where explicit sex is a matter of common fare on our television sets, that cases could arise in which an eleven year old might properly be subjected to criminal charges of being “lewd” with another child. For example, if Scott’s cousin had not been a sexually active eight year old and had, instead, been, say, five or six years old, I might be able to see some justification for bringing criminal charges in a case of exposure and consensual, “on top-of-clothes” touching, even though I think civil proceedings would in almost all cases like this one best serve the interests of prepubescent children involved in sexual exposure and the kind of sexual experimentation that was charged in the present case. A publication of the California Continuing Education of the Bar, California Juvenile Court Practice: Delinquent Minors, discusses the legal problems associated with young children’s “playing doctor” and other sexually-oriented children’s games such as the one that may have been involved here. I quote at some length from the text:
Courts and practitioners should bear in mind that the juvenile court exists primarily to intervene in children’s lives when necessary to protect the public and to satisfy the minor’s rehabilitative needs. Although a discussion of youthful sexuality is far beyond the scope of this work, it is generally conceded that a certain amount of sexual discovery and experimentation is part of the normal process of growing up. The adults involved in juvenile proceedings should be sensitive to this and the fact that such cases, by their nature, involve very young children who might be easily damaged. There are limitations to both what the juvenile court process is intended to do and what it can do. The Paul C. [In re Paul C., 221 CA3d 43, 270 CR 369 (1990)] court’s call for restraint and the use of judgment reflects the proper approach to the initiation of quasi-criminal legal actions in this area.
There are two better approaches to use if the sexual conduct between like-aged minors is clearly consensual. First, although that conduct might constitute a technical violation of [the California Penal Code], it may not be the type of conduct that warrants the exercise of the juvenile court’s jurisdiction. Instead, application of the supervision programs of Welf & I C §654 [informal probationary supervision without court intervention or adjudication] or §725(a) [court-approved informal probation, without formal delinquency adjudication], or dismissal of the petition under Welf & I C §782 might be warranted if the action is actually filed. Standards 2.2 and 3.3 of the ABA Juvenile Standards . . . may provide authority to support the court’s refusal to impose [delinquency] wardship in this situation.
Second, experience shows that these types of charges are most often filed against boys, and filing a motion to dismiss for discriminatory prosecution with the attendant discovery proceedings (see Murgia v Municipal Court (1975) 15 C3d 286, 124 CR 204), might resolve the issue.
Henry J. Hall, I California Juvenile Court Practice: Delinquent Minors 3-4 (February 1995 update).
The quoted text is an appeal to common sense and reason. It is simply not necessary to adjudicate sexual experimentation of prepubescent children as a crime, even when the crime is euphemistically called “delinquency.”
It is clear from the record that Scott’s cousin had some very serious sexual problems that dated back to far before the “latter part of 1992.” The girl’s own mother traces her daughter’s precocious and habitual sexual preoccupation to age six. The mother testified that she noticed these activities “[a]bout two years . . ,[t]wo and a half years maybe” before the time of trial. This would relate to a period between March 1991 and September 1991, when the little girl was only six years old. The mother testified that she found her daughters, one on top of the other, “doing what a man and a woman would normally do in their own bedroom or in a motel room or something. She “caught them twice.” Scott’s cousin, at trial, admitted to having in the past engaged in sexual activities with a girl named Destiny and with Destiny’s brother, in which one or another of the children would be “on top of her with your pants down.” Two other witnesses observed some rather troubling sexual activity by this girl. When she was “[p]robably four, four and a half,” she was seen to “g[e]t on top of Brian and started humping on him.” Brian was the witness’s son and was “[p]robably two and a half” at the time. I relate this child’s sexual history not because it portrays the likelihood that the mother’s version of her daughter’s touching Scott’s lower abdomen is more likely the case than her daughter’s conflicting version, but to suggest that if formal proceedings (civil not criminal) were to be brought in this case, perhaps this little girl is a more suitable subject for a juvenile court petition than the little boy.