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The Columbia County District Attorney’s Office on Tuesday dropped felony child exploitation charges against a Poynette man accused of inappropriately filming himself with a 5-year-old foster child.

“I don’t think that going forward with the felony that was originally charged in this would be beneficial to anyone — Mr. Skare, the victim, the public,” said Assistant District Attorney Cliff Burdon at the hearing. “I don’t think the things that he did that are outlined in the probable cause warrant him to be branded as a felon or as a sex offender.”

Jay Skare, 58, was charged in Jan. 2014 with sexual exploitation of a child, accused of making a sexually explicit video with a 5-year-old girl.

The video, as described by a Columbia County Sheriff’s Office detective in the criminal complaint, showed the girl acting in a highly sexual manner with Skare, including undressing, touching herself, and putting her hands on Skare. During the video Skare also reportedly asks the girl, “If I was your dad, what would we do right now?” To which the girl says that they would kiss and have sex.

This video and how available it should be was under discussion in a motion hearing in July 2015 when defense attorney Charles Giesen argued that it needed to be made available to himself and co-counsel, whereas the prosecution did not want “Giesen’s whole office” seeing the video.

“Mr. Skare felt he had no choice but to do this, because she wasn’t talking to the police,” Giesen said according to court documents. “And that’s why those recordings, although they may not have mentioned Mr. Skare specifically, are important, to show she’s been groomed. Mr. Skare’s assessment of this was correct and it supports his having acted in good faith.”

“Your honor, this is a ridiculous argument that the court has heard already,” Assistant District Attorney Brenda Yaskal said to Judge Alan White during the 2015 hearing. “Mr. Skare is not a law enforcement officer. He is not a social worker. He’s not trained in child interview techniques. The amount of leading questions and various things he had this child do on tape show exactly why lay people do not interview children when it comes to allegations of abuse and neglect.”

Legal immunity in such cases is limited to law enforcement and social workers, Yaskal argued. “In fact, Mr. Skare was told by two different social workers specifically not to engage in the questioning of this child.”

At the time White said that the direction of the argument pertaining to the child’s parents risked the trial becoming a trial within a trial.

The case went forward with Skare free on $2,000 cash bail, released on bond after 11 days in jail following his arrest. Trial was scheduled for 9 a.m. Thursday, prior to a motion hearing being called and a new criminal complaint submitted on Tuesday.

Video for police

“I do not think the public needs to worry about Mr. Skare,” Burdon said. “He was a foster parent and, again, he did something he thought was appropriate, which he thought was to protect the victim, and instead created the situation which brings us here today.”

Giese described the case as the most extreme example of “no good deed goes unpunished,” with Skare and his wife taking in this girl unaware of any history of sexual abuse, uninformed by health and human services, but finding out by the girl “acting strangely and overtly sexual.”

“He was afraid the father was trying to regain custody of this poor little girl,” Giese said, pointing to a transcript of a discussion between Skare and police, telling an officer of the girl’s behavior and statements, “I could get it recorded,” with the officer replying, “Yeah, if you could do that, if you could see if you have it, and if you do, we could make arrangements to get him,” referring the girl’s father.

“(Skare) says, ‘I’ll see what I can do,’ and the officer’s final orders are ‘Thank you very much for trying to get that,’” Giese told the court. “Jay did that with the explicit consent of the police and he was going to protect this little girl from further harm. The day after he made the recording, he called the police and told them he had it, and they came to the house and arrested him.”

Judge sees no intent

Comparing the case now with the arguments of the preliminary hearing, now having seen the video in question and transcripts of exchanges between police and Skare, White said he was no less convinced now that there was no sexual intent in the video, saying that if the case depended upon intent of that kind, it would have ended at the preliminary hearing in 2015.

“I don’t think it was sexual exploitation of a child filming it,” said White. “But those things don’t go away. And it is a lesson that all of us should take away that we ought to be careful before we start charging things.”

White emphasized the power held by the court in criminal charges, “and I don’t think that prudence was used in charging this case. That doesn’t mean that at the time of the preliminary hearing there was not a reason for bind-over to begin with.

“I understand what he was trying to do,” White said of Skare. “But there are certain things that adults shouldn’t do unless they are actually trained in that area.”

“This is not the first case this court has presided over where it has turned into going form an extraordinarily serious charge, to pretty much, the least of charges you can get,” said White. “This charge remains on CCAP (Wisconsin Circuit Court Access) and hopefully some of the statements here today and the fact that the case is being dismissed will rectify that.”

While the charge of child exploitation was dismissed, Skare entered a plea of no contest to a misdemeanor charge of disorderly conduct.