A 5-Year-Old Pulled Down a 3-Year-Old's Pants. The Preschool Workers Are on Trial.

"We are here because one preschooler pulled down another preschooler's pants," says defense attorney Jason Flores-Williams.

Two Colorado child care workers will go on trial this June for presiding over a day care center where a 5-year-old pulled down a 3-year-old's pants.

Amy Lovato and Roberta Rodriguez of The Schoolhouse day care center in Poncha Springs face criminal charges for not reporting this incident to the authorities quickly enough, and for putting the children in danger.

"Let this fact not be obscured: We are here because one preschooler pulled down another preschooler's pants," Jason Flores-Williams, Lovato's attorney, told 11th Judicial District Judge Brian Green on Thursday, asking him to dismiss the charges.

Added Flores-Williams, these charges "criminalize preschool behavior by turning a 5-year-old into a deviant and a 3-year-old into a victim for acts that are neither sexual, abusive, criminal, negligent, or against any reasonable person or community standard."

Judge Green denied the defendants' motion, according to The Colorado Sun.

"This is the perfect case for the jury to hear," he announced to a courtroom that was packed with school parents who came to support Lovato and Rodriguez. The attendees expressed their feelings so loudly—sighing and groaning with exasperation—that the judge had to warn them to be quiet.

"I understand the great importance to the community, but I don't want to be sidelined or distracted," he said.

Green is presiding because the first two judges assigned to the case had to recuse themselves; their kids attend the day care center in question, Flores-Williams tells Reason.

The case against Lovato and Rodriguez seems to involve four charges, but even the judge found the case so muddled that he instructed the prosecutors to present it more cogently.

No one disputes that on January 16, Lovato was filling in as a classroom teacher because the center was short-staffed. When one of the kids wet their pants, Lovato left the classroom for between 3 and 5 minutes to clean the kid and deposit the wet clothes in the laundry. When she returned, she saw the 5-year-old "crouched over" a 3-year-old who later told Lovato that the boy had tried to pull her pants down and touch her butt.

The next day, when Lovato went into the center's bathroom, she found three kids there, including a girl with her pants down and the same boy. He was touching her butt.

The school did not ignore this misbehavior. It called the parents involved. It planned an all-school meeting on the topic of keeping your hands to yourself. Rodriguez took it upon herself to call the Chaffee County Early Childhood Council to find out what else she should be doing. She also reported the touching incidents to the child welfare department and the kids-briefly-in-a-room-without-a-teacher incident to the state licensing office.

But as the toddlers themselves discovered, sometimes there is just no way to cover your rear end. The authorities shut down the day care center midday on January 24, calling parents to immediately come pick up their kids. Terrified moms and dads raced over to find six armed deputies and a slew of cop cars.

"When they realized their children were safe, they wondered if they had been molested," reported The Colorado Sun. "Neither the sheriff's deputies or Chaffee County child welfare authorities who joined them in the raid of the child care center were providing information."

It was only two days later, during a meeting at the sheriff's office, that the parents learned what had happened.

In summary, the potential wrongdoing seems to involve not reporting the incidents immediately enough—these were officially reported to the authorities about three days later—and leaving the kids unsupervised for the briefest of moments.

The defense attorneys argued that the question of how quickly a school must report an incident of abuse is vague. So, it seems, is the definition of abuse. And so is whether leaving the room to clean off a pee-soaked kid constitutes neglect.

The problem, says Flores-Williams, is that we give child care workers enormous responsibility, "and yet we afford them no discretion in the way they handle those responsibilities."

It's also a problem that the authorities would seek to punish a preschool for being a place where there are preschoolers. Unruly kids are a fact of life, and treating a common occurrence like a criminal matter is absurd. A trial is not in the best interests of the kids, their parents, or anyone else.

"In some ways, this perfectly illustrates a system we set up that winds up leaving nothing but trauma and harm in its wake, and yet we justify it in the name of 'protecting the children,'" says Richard Wexler, executive director of the National Coalition for Child Protection Reform. "An awful lot of time has gone into this: The police had to investigate, child protective services investigated, there's a trial that's about to happen. All that time and money and effort is, in effect, stolen from finding the relatively few children in actual danger."

Wexler added that Colorado has set up a task force to study the mandatory reporting issues.

"They should look very closely at this case," he says.

But for now, the case is going to a jury. Expect more groans and sighs.