This is a rush transcript from "Hannity & Colmes," November 13, 2007. This copy may not be in its final form and may be updated.
ALAN COLMES, CO-HOST: A mother in Wisconsin was prosecuted, all because she told her young children a little too much about sex.
Apparently, Amy Smalley had a detailed conversation with her 11-and 15-year-olds about sex. When her older son mentioned it to his school counselor, Smalley was taken to court, where she was charged with exposing her children to harmful material.
She believes she's innocent. Smalley says she accepted a plea deal to prevent her children from having to testify.
Joining us now, defense attorney Ann Bremner and former district attorney Jeanine Pirro.
What's so funny?
JEANINE PIRRO, FORMER DISTRICT ATTORNEY: Preventing her children from having to testify?
COLMES: Yes, yes.
PIRRO: The truth is, she's the one who gave them the information that's so embarrassing we can't even...
COLMES: She doesn't want to have her kids on the stand.
PIRRO: ...we can't even talk about it on national television.
COLMES: She's protecting her kids.
PIRRO: She's not protecting her kids. That's why she's in the trouble she's in.
COLMES: You want — wait a minute. You know, you conservatives love to say...
PIRRO: I'm a — you know what? Let me tell you. I'm a mother. I'm a former judge, and I'm a former D.A.
COLMES: Congratulations. On three counts.
PIRRO: And let me tell you something.
COLMES: All right.
PIRRO: I live in a society where we recognize the harm to children, and you don't get it past...
COLMES: A lot of people — a lot of people say, "Don't have them have sex ed in school. Let the parents teach them. Let the parents teach." And here you want to have a parent talking to the kids about this, and you want to get the government involved and say you can't say that to your kid?
PIRRO: Alan, I would bet my bottom dollar that your mother never did what this woman did to her children to the point where her 11-year-old complained and said, "I didn't want to know about this. I don't want to know how to use a sex toy. I don't want to know what happens when this goes in your mouth."
COLMES: And if my — my mother should have been taken to court if she did?
PIRRO: Yes. There is a statute in Wisconsin, exposing a children to harmful material...
COLMES: Harm by — I see.
PIRRO: ... 948, subdivision 11.
COLMES: I see. So now...
PIRRO: It's clear that this is the law.
COLMES: Ann Bremner, now they want the government to get involved in the kind of a conversation a mother and child can have about something they don't want the school to teach. They want the parent to do it. Now when the parents do it, let's take them to court if they say the wrong thing.
ANN BREMNER, DEFENSE ATTORNEY: Yes. Tell your kids about sex. That's what we always say. Teach your children. Teach them well.
The U.S. Supreme Court has said that parents have a constitutional right, a liberty interest, in making decisions about their kids' care, custody, and control.
And I'm sorry, but when you're telling your kids about sex, which most kids don't think oral sex is sex — thank you to President Clinton and Monica Lewinsky — then when you say, "That's something that's better than having sex, and you should teach kids under 13." And they arrest her. They called it a crime. She called it an education. And I'm sorry, but it is ridiculous.
COLMES: Do you think this mother was wrong to go as far as she did? Is this an actionable offense, or is it protected free speech where a mother can talk to her kid? Does this mother belong in court, prosecuted by the government, because she talks to her kid about something parents and kids should talk about?
PIRRO: The reason she belongs in court, the reason she is a convicted criminal right now is because she violated the law. You don't get a pass because you're the mother. You're not able — it's the level of detail, Alan.
SEAN HANNITY, CO-HOST: I've got a question.
PIRRO: It's a description of how you use a sex toy.
HANNITY: Hang on a second. Ann Bremner, do you think it's appropriate for anybody to be explaining kids how to perform oral sex and putting a sex toy in front of an 11-year-old? Do you think that's appropriate?
BREMNER: Here's the answer, Sean. It's this. Even the — the head of the National Institute on Sexual Morality said not good parenting, but not actionable, not criminal. And the thing is — one more thing on that. But it's appropriate...
HANNITY: Give me a legal definition.
BREMNER: This statute says thou shalt not show materials, i.e. porn, to a child. That's the criminal statue.
HANNITY: Oh, OK, so a sex toy doesn't fit into porn category?
PIRRO: No, Ann, you're wrong. I have the statute in front of me right now. It is a drawing, a sculpture. A dildo is definitely a type of sculpture.
And it is, if it's patently offensive to the prevailing standards in the adult community, where people would say that it is not suitable for children. And when it appeals to their prurient interests and embarrasses them. This kid was so embarrassed he told a counselor about it.
BREMNER: Jeanine, you know I respect you.
PIRRO: And vice versa, Ann.
BREMNER: Thank you. But here's the deal with this. It's like "I know it when I see it" with pornography, like our Supreme Court said. And when you're — this is what — in sex education you show different things in sex education. And you say to your kids, "I don't want you having sex"...
HANNITY: All right. Let's go to time. Hang on. I will tell you this, because this Maine school wanted to give birth control pills and condoms to 11-year-old kids...
PIRRO: Right. Which is making the state complicit in sexual assault.
HANNITY: As outrageous as I find this, I mean, there's a libertarian part of me that says, if liberal crazy parents want to do this, at some point what age do you let them?
PIRRO: But Sean, it's like neglect. We don't allow parents to neglect their children.
HANNITY: Do you do it at 12, 13, 14? At what point are they allowed to...
PIRRO: Look, under the Wisconsin statute that has survived many appeals...
HANNITY: What's the D.A. think?
PIRRO: What, for the pills?
HANNITY: Well, or...
PIRRO: For something like this? I don't know, 16, 17, 18, not 11 years old.
HANNITY: Well I agree with you. All right.
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