"Crimes" are not strict liability events. This means the defendant doesn't get railroaded simply because a bad act took place. In our "crime" world, traditionally, there also had to be proven beyond a reasonable doubt the mental intent to commit the crime.
Your lawyer is telling you the child did not or could not form the mental intent to commit the crime. So no crime took place. Indeed not every indescency is a crime.
Yes they must approve intent to commit sexual assault. The scenario does not sound like a crime at all, because it is doubtful that a child at that age could form intent.
I agree with my Avvo colleagues. You should talk and discuss the issues in this case with your attorney. Understanding how the law applies to a specific situation is seldom easy. Communicating how the law works us one of the tasks of lawyers. Some of us pride ourselves the explanation to our clients.
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Almost all crimes need specific intent to commit the criminal act, not just the physical act. I bump into you accidentally, you fall and break your wrist, there is no criminal intent. If I purposely bump into you or push you, and you fall and break your wrist, it is a crime, because of my specific intent to harm you. Typically, a child under 6 years of age is by law considered incapable of forming criminal intent (it varies with jurisdiction). An 8 year old, depending upon what "special needs" means in terms of his mental abilities, may similarly be unable to form criminal intent. Many laypeople confuse the physical act with the criminal act. One is part of the other, but not the other way around.
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