LAUSD Can’t Argue 14-Year-Old Student Contributed to Own Sexual Assault

Thursday, September 17, 2015
Hermida Elkis

A unanimous California appellate court reversed a trial judge and ruled the Los Angeles Unified School District (LAUSD) cannot argue in court that they aren’t liable in the sexual assault on a 14-year-old student by a teacher because she bears some responsibility.

The student sued the school district for damages after the teacher, Elkis Hermida, was convicted of lewd and lacivious acts with a minor and sentenced to three years in prison in 2011. The district responded with a vigorous defense, best summarized by their lawyer, W. Keith Wyatt, in an interview with KPCC:

“She lied to her mother so she could have sex with her teacher. She went to a motel in which she engaged in voluntary consensual sex with her teacher. Why shouldn't she be responsible for that?”

Judge Richard H. Kirschner, writing for the court, answered that rhetorical question: 

“The trial court instructed the jury that there is no age of consent and that a minor is capable of giving legal consent to sexual intercourse. This instruction was incorrect under the circumstances of this case, which involve the sexual abuse of a minor by an adult in a position of authority.”

Put another way:

“The victim of a crime does not bear any responsibility for the harm she suffers from the crime. Thus, a minor’s purported consent to a crime is simply not relevant in a tort action against a school district for damages arising from the sexual abuse of a minor by a teacher.”

The district made its argument in civil court, where determinations of culpability are different than criminal proceedings. California has a rape shield law that limits information about a victim’s sexual history in court, but it only applies in criminal cases, not civil cases. Nonetheless, Jeff Dion, an official with the National Center for Victims of Crime, told KPCC last year, “It’s unusual that we are seeing it being used against a child.”

The district relied on proving that other teachers, school officials and the district itself didn’t know about the abuse, so they couldn’t be responsible. That responsibility, they argued, rested with the parties involved, including the girl.

That convinced Los Angeles Superior Court Judge Lawrence Cho to put the girl’s name on a jury form that list potential partial responsibility. The court ordered a retrial that doesn’t include the student’s name, sexual history and “consent.”

–Ken Broder


To Learn More:

LAUSD Cannot Blame 14-Year-Old for Own Sexual Assault, Appellate Court Rules (by Teresa Watanabe, Los Angeles Times)

LAUSD Argued Middle Schooler Can Consent to Sex with Teacher (by Karen Foshay, KPCC)

LAUSD Sorry It Successfully Argued Girl, 14, Consented to Sex with Teacher (by Ken Broder, AllGov California)

S.M., a Minor v. Los Angeles Unified School District (California Court of Appeal Second Appellate District) (pdf)

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