DUNCAN — Tuesday afternoon, a Comanche County judge denied an appeal by Stephens County prosecutors who were seeking to have a charge of aggravated assault and battery reinstated against a special-education teacher from Marlow. But while upholding the local court’s dismissal of the charge on legal grounds, District Court Judge Charles Allen McCall offered comments that were sympathetic to the prosecution.

Donita Healer, 48, of Duncan, was charged with assaulting a 9-year-old boy with autism last September, a child who was her student at the Marlow Co-op. The Co-op is a school for developmentally disabled students.

Defense attorney Richard O’Carroll argued that a mental disability does not make a person incapacitated, and during Healer’s preliminary hearing Dec. 12, Stephens County Special Judge Carl LaMar refused to have her bound over on the charge; holding that by Oklahoma law a developmentally disabled child is not considered “incapacitated.”

“It was the state’s opinion that a child did not meet the definition of being an incapacitated person due to autism,” summed up Stephens County Assistant District Attorney Josh Creekmore. Because the definition of aggravated assault and battery is a physical act against an “aged, decrepit or incapacitated” individual by someone in good health, if a disabled child by law is not incapacitated there can be no felony-level assault against such a child.

First Assistant District Attorney Dennis Gay said prosecutors filed the aggravated assault charge against Healer because, by state law, a public school teacher in Oklahoma cannot be charged with child abuse.

Lisa Branum, whose son was the victim of the alleged assault and who is herself a special-education teacher in Marlow, was the only witness who testified in Healer’s preliminary hearing and was present when McCall ruled on the appeal this week.

“He (McCall) said that if he had been the judge at the preliminary hearing, he probably would have ruled differently, which made us feel better but wasn’t much help,” said Branum. “But he explained that all he was able to rule on in the appeal was if the decision was legally correct.”

McCall noted that the issue raised in the case: that the legal definition of incapacitated does not include a child with a disability, was an important omission that needed to be addressed by lawmakers.

“What kind of message is this sending to other parents and teachers about the security of our children?” asked Branum. “If my son had suffered a broken bone rather than just bruises, the ruling would have been the same.

“There is currently no law now that protects my son,” Branum continued. “This ruling is definitely setting a precedent.”

Creekmore said the definition of the term “incapacitated” in state statutes refers to a person over the age of 18, and is used mostly for guardianship proceedings.

“It was our position that the Legislature has been increasing the laws protecting our state’s children, and we think it was their intent to include developmentally disabled children as incapacitated,” said Creekmore.

Branum said that on Wednesday she contacted state Rep. Ray McCarter, who has promised to set up a meeting with other state lawmakers to discuss the problem.

“He said we’d have to amend an existing law or write a completely new law, which would take longer,” said Branum. “But we need to protect all these children who can’t take up for themselves.”

Creekmore said the district attorney’s office has yet to decide on its next move. The choice, said Creekmore, is to appeal the decision to the next level. Oklahoma’s Criminal Court of Appeals, or to file a misdemeanor charge of assault against Healer.

“Those decisions are still pending,” stated Creekmore.

The charge against Healer stems from an incident at the Co-op last September.

Branum testified that her son had bruises on his arms, shoulder, chest and back after Healer admitted that she and a teacher’s aide had held the child in a chair to force him to do “seatwork.”

Branum said that according to her son’s IEP (the individualized education plan required by federal law for all special-education students and developed in a team approach with school officials), her son should not have been forced to participate in “seatwork” because he was not capable of it.

Branum said she took her concerns to Marlow Schools Superintendent George Coffman, who then talked to several of the people involved before contacting the Marlow Police to investigate the incident.

Charges were filed against Healer and teacher’s aide Lisa Berscheidt after the police investigation.

Berscheidt’s preliminary hearing is set for February.