In a disgusting move last week, LA Unified attorneys sought to present evidence of a 14-year-old girl’s sexual history to prove that she willingly consented to sex with a teacher to get the district off the hook for failing to supervise the teacher. The abhorrent move seeks to cast the student as a sexual equal with the teacher, something which is impossible. Students are at least, in some ways, like underlings working for a boss. In the normal world, even in a consenting relationship between adults, the specter of sexual harassment raises its head.
Even a 14-year-old who has experimented sexually with other students, basically with other children, is not operating emotionally on the same level as an adult who is legally deemed to understand the consequences of his or her actions. A jury found the district was not liable in the original case because the student participated in keeping the relationship a secret. The student has appealed.
Meanwhile, the former middle school math teacher, Elkis Hermida, has been serving 3 years in prison, convicted in 2011 for lewd acts with a minor with an enhancement of being more than 10 years older than the victim. This is a classic case of a minor child being manipulated into keeping a secret. Apparently, among other places, he lured her to a hotel room. The catchphrase of all sexual abusers is, “Don’t tell anyone.” Most likely, afraid to tell an adult and in the confusing thrall of awakening sexual feelings, the girl spoke about it with a friend. The friend was troubled enough to talk about it with her science teacher.
“She lied to her mother so she could have an opportunity to have sex with her teacher, then she went to a motel in which she engaged in voluntary consensual sex with her teacher. Why shouldn’t she be responsible for that? While we are sympathetic of the pain that this type of inappropriate relationship could cause this young woman and her family, the case focused on whether the school district could have done anything to prevent it,” said L.A. Unified attorney W. Keith Wyatt, who has come under fire for his comments.
“It doesn’t make sense,” said Jennifer Drobac, an Indiana University law professor who has studied consent laws nationwide. “The same parties, same behavior, same everything, consent is no defense in a criminal trial. But the same set of facts in a civil prosecution, consent is a complete defense. How is that possible? It’s not logical.”
The L.A. Times referred to legal specialists. Attorney David M. Ring, who specializes in sex abuse cases for comment, said he had never heard of such a move a considered it despicable. “The belief that middle school children can consent to sexual activity is something one would expect to hear from pedophile advocates, not the second-largest school district in the U.S.,” said John Manly, the attorney representing the elementary-school-aged children sexually abused at Miramonte Elementary school.
Attorney Holly Boyer, who filed the appeal on behalf of the girl said, “The teacher is a person in an authority position who is grooming a child for several months, establishing a relationship with this child, and then abusing this child. For the District to then argue that the child was somehow, should be responsible for her injuries is shocking…I’ve done sexual abuse cases against school districts before and I’ve never seen the persistence of this argument. I’ve never seen this at all that the victim willingly participated in this and that they should bear some responsibility in their injuries.” She said that some of the sexual activity occurred at the school and involved months of exchanging text messages and photos, other teachers witnessed hugging.
A summary includes, “Counsel also contended that the student would ask to leave class to go to the bathroom, but then go to Hermida’s classroom to engage in kissing. Counsel further contended that Hermida and the student engaged in sexual intercourse and oral sex during Hermida’s conference period, when Hermida was not supposed to be with students.”
California age of consent laws stringently place the age of consent at 18 with an adult more than 3 years older. A person over 21 is guilty of a misdemeanor if they have sex with a minor under the age of 16. So, 16 can be the age of consent, but only under certain age criteria for the partner. 14 is not considered an appropriate age of consent in any state. Hermida was 28-29 at the time of the relationship with the girl who was 13-14. Disgusting aptly describes this former teacher’s conduct.