FARMINGTON — Reviewing the case of a 16-year-old Kirtland Central High School baseball player accused of rubbing himself against another student's leg in what students called a "rape game," a state district judge said the act may not rise to the level of a felony sex crime.

The Waterflow teen was charged with fourth-degree criminal sexual contact of a minor by force after the alleged incident occurred April 14 on a school bus while returning from a junior varsity baseball game, according to the Sheriff's Office.

If convicted of that crime, the teen could be required to register as a sex offender for life.

Students told Sheriff's Office investigators the action of holding down a younger male and making thrusting movements with the groin while fully clothed is known as "rape game." The behavior was described as a common type of initiation for athletes at Kirtland Central, according to the arrest report.

At an arraignment hearing this week, District Judge William Birdsall questioned whether the sex crime allegation was appropriate considering the circumstances.

"I'm having a lot of trouble, based on the (probable cause) statement, turning this into anything other than a battery, albeit a very foolish and immature one," Birdsall said.

Simple battery is a misdemeanor crime.

The judge, in court documents filed after the hearing, described the battery as "weird," according to court records.


Birdsall on Wednesday ordered the 16-year-old to be placed on house arrest while the criminal charge is pending, contrary to a recommendation from the juvenile probation office, which described the boy as "a risk to others in the community."

Since being arrested, the teen was removed from the baseball team and given a nine-day school suspension.

The Daily Times chose not to identify the teen because he is a minor and the behavior was reported to be common among other student athletes.

The teen is being represented in state district court by the Public Defender Department.

San Juan County Chief Public Defender Christian Hatfield described the case as seriously overcharged.

The attorney noted the criminal sexual contact of a minor charge is designed to protect children from adult predators. Teenage horseplay doesn't fit that category of criminal behavior, he said.

"If we start criminalizing everything stupid that teenagers do, we're going to have to build a lot more jails," Hatfield said. "Generally speaking, teenagers do a lot of dumb stuff that doesn't (count) as criminal conduct."

The District Attorney's Office said the charging decision will be reviewed after a complete police report is filed by the Sheriff's Office.

"With any case we'll review the appropriateness of the charge before we proceed with the prosecution," Chief Deputy District Attorney Dustin O'Brien said.

Referencing more serious sexual hazing reported at a Las Vegas, N.M., high school football team, O'Brien said the Kirtland Central incident raised concern the activity could lead to something "a lot more serious" among athletes.

Kirtland Central officials previously stated the behavior would be stopped.

School Principal Michael Thornton said the report was the first school leaders had heard of the ongoing sexual harassment.

"The adults are communicating that this is not horseplay," Thornton previously stated. "What he did probably took 15 seconds, but he's certainly thinking about it now. He's dealing with the consequences. Hopefully that will send a strong message."

Thornton was away from his office Friday and could not be reached for further comment.

The next pretrial hearing for the teen charged in the incident is scheduled for Wednesday.

James Monteleone: