The arguments were made in a civil case that was filed last year by the student, who was seeking financial compensation from the district. She said she suffered emotional trauma from a five-month sexual relationship nearly four years ago with her teacher at Edison Middle School in Los Angeles.
District officials, defending their legal strategy Thursday, said they needed to rebut the student's claim with evidence that she was a willing participant who had a prior history of sexual activity.
"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," L.A. Unified's attorney, W. Keith Wyatt, said in a statement. "Trying this case in a respectful manner, but one that allowed the jury to consider the full weight of the facts and evidence, was critical."
But the actions in the case, first reported by KPCC, were blasted by legal experts.
"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, one of the attorneys representing plaintiffs in the Miramonte Elementary child abuse case. That case, involving allegations that the district failed to supervise a teacher who allegedly fed semen-laced cookies to children, is set for trial this month.
David M. Ring, an attorney who has specialized in sex abuse cases for 25 years, said he had never heard of anyone presenting the sexual history of a minor in court and called the action despicable. He also said that middle school students are incapable of consenting to sex with adults, especially with teachers and others who can exploit their positions of authority to manipulate them into such acts.
A jury last fall found L.A. Unified was not liable for damages in the case. District officials argued that school staff did not know of the abuse and that the eighth-grade teacher and student took pains to conceal their relationship until it was reported to a science teacher by the victim's friend. When notified, officials said, the district immediately removed the teacher, Elkis Hermida, from the classroom; he was subsequently convicted on criminal charges of lewd acts against a child and sentenced to three years in prison in 2011.
Holly Boyer, a Pasadena attorney who is appealing the case on behalf of the student, said witnesses testified that Hermida hugged students and that one teacher saw him lying on classroom desks texting with pupils present but acknowledged that she did not report any inappropriate sexual activity.
Boyer said the appeal will challenge the decision by Los Angeles County Superior Court Judge Lawrence Cho to allow the district to present evidence of the girl's prior sexual history, among other grounds.
Laurie Levenson, a Loyola Law School professor, said that it was a risky tactic to present evidence of a minor's sexual history and that many judges would have limited its use or barred it. She also said that only a few California cases have indicated that minors might possibly be able to consent to sex with an adult and that the issue needed to be more clearly litigated.
She added, however, that the student in this case appeared to have "opened the door" to such evidence by seeking damages against the district for the teacher's actions.
Manly called on the district to fire Wyatt and others responsible for the handling of the case. Wyatt, in remarks to KPCC that further stoked the outcry, said it was a more dangerous decision to cross a street with oncoming traffic than to have sex with a teacher. He issued an apology to the student and her family Thursday, saying that his remarks were "ill thought out and poorly articulated" and did not represent the district.