When parents or teachers talk to young children about inappropriate touching, they often simply describe "private parts" as the areas of the body covered by a swim suit. So is a boy touched on his bare chest a bad touch?

That question was at the heart of the nine-week Joseph Martin trial and in the end showed how hard it can be to win a conviction in such a case.

On Thursday afternoon, the jury acquitted the 46-year-old Concord teacher of 21 molestation counts involving three former male students and leaned heavily toward acquittal on 95 other counts involving 11 other boys before a mistrial was declared.

Joseph Andrew Martin, 45, of Martinez, is shown in this police photograph in Concord, Calif., on Friday, June 28, 2013. (Concord Police Department)
Joseph Andrew Martin, 45, of Martinez, is shown in this police photograph in Concord, Calif., on Friday, June 28, 2013. (Concord Police Department)

The law says yes, such touching can be classified as molestation if done for sexual gratification. But as the prosecution discovered, proving that can be difficult, whereas proving a defendant digitally penetrated a young girl leaves very little doubt as to sexual intent, a law professor said Friday.

"It's a tough case because the touching could be interpreted as an innocent touch," said Tamara Lave, a University of Miami law professor and a 10-year former deputy public defender. It's "touching an area not usually considered an erogenous zone."

Prosecutor Derek Butts said his office will decide whether to retry Martin in the high-profile case no earlier than the next court date Sept. 8.


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Even Butts, in his closing arguments, acknowledged the alleged touching was not the most egregious, telling the jury: "There are more serious forms of sexual abuse." However, the prosecutor introduced evidence attempting to show Martin had a predilection toward young boys to prove the intent behind the touches was sexual.

Martin's attorney Patrick Clancy said his client was an affectionate teacher who used touch to calm and focus troubled students during circle time. Using boy mannequins during the trial, Clancy showed how a large adult hand placed on the center of the chest nearly touches the nipples on a small boy's chest without moving.

"We're talking about moving a hand a couple of inches; that's what this case comes down to," Clancy told the jury in closing arguments.

However, the executive director of the Contra Costa Child Abuse Prevention Council said parsing out different levels of abuse is a mistake.

"Any inappropriate actions between an adult and a child is not OK," said Carol Carillo, whose organization teaches East Bay school districts about abuse and how to properly report it. "Just because it's seen in someone's eyes as not as severe as intercourse or any other kind of abuse ... it's still not OK."

Carillo said research shows children do not lie about being sexually abused and she's worried that the boys now feel like no one believes them.

"I'm extremely concerned that there's a chance that this guy will be let free and I think children will still be at risk," she said.

Marc Lewis, who represents two boys in a civil case against Martin and the school district, said his clients were "disappointed."

"My heart goes out to all the victims," Lewis said. "They're looking forward to getting their day in court in the civil case."

More than a dozen former students and their families have sued over the handling of Martin in his tenure with Mount Diablo school district.

"The (criminal) result has absolutely no bearing on the civil case and we plan to move forward as aggressively as ever," Lewis said.

Clancy, who did not return a call for comment Friday, said after the verdict that Martin's case was the largest false allegations case since the infamous McMartin preschool trial in the 1980s.

Members of the McMartin family, who operated a Southern California preschool, were charged with multiple counts of sexual abuse against children in their care. Sparked by day care sex abuse hysteria, panic over alleged satanic ritual abuse and a mentally ill mother of an alleged victim, the case turned up more than 300 alleged victims and involved wild allegations of secret tunnels underneath the school, witches and sex with animals. In 1990, the suspects, after spending years in jail, were acquitted of all charges.

At the time, it was the longest and most expensive trial in American history and changed how child victims were questioned and how child sex abuse cases were investigated.

Although different in many ways, Lave said group hysteria cases have similarities in "suggestibility," the way investigators ask questions, such as leading alleged victims. The law professor said she expects the defense to file a motion to dismiss and the prosecutor to offer a plea deal. Butts was not available for comment Friday.

"Jurors were sending a message to the prosecutor that they had a problem with his case," Lave said. "The prosecutor will have to think if he could fix the case."

Lave agreed with Clancy who said male teachers should think twice about teaching in elementary school.

"I think that people working with kids need to be careful in a way they didn't before," she said. "If you work with kids these days, keep your doors open and never be alone with students."

Contact Matthias Gafni at 925-952-5026. Follow him at Twitter.com/mgafni.