State bill would clarify that youth under 18 cannot legally consent to sex with adults

Aiming to close a legal loophole that allowed L.A. Unified attorneys to argue that a 14-year-old girl could consent to sex with her teacher, a state assemblywoman introduced a bill Monday that would bar that defense in civil cases.

Assemblywoman Nora Campos (D-San Jose) said she was outraged when she learned that the district successfully used the argument to combat claims for financial compensation filed last year by the girl. The student said she suffered emotional trauma after her then-teacher at Edison Middle School in Los Angeles lured her into sex for several months four years ago.

Campos’ measure, AB 29, would make the age of consent 18 in civil cases involving sexual intercourse between two parties. That would clarify state law, which some California courts have interpreted as allowing those as young as 14 to consent to sex with adults. Criminal law generally holds that sexual activity between adults and those under 18 is illegal.

“It’s ridiculous to argue that a child can consent to sex,” Campos said in an interview. “No victim of sexual abuse, especially a child, should ever be blamed.”

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, the district 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.

But L.A. Unified officials came under fire after their legal defense was reported in a radio broadcast this month by KPCC. The district subsequently severed ties with W. Keith Wyatt, the outside attorney who had represented L.A. Unified on this and other cases for 27 years.

Jennifer A. Drobac, an Indiana University law professor and expert on consent laws, said the Campos measure did not go far enough. She said, for instance, that the abuse of boys by men might not be covered because the measure does not apply specifically to sodomy but only “sexual intercourse,” which courts have generally interpreted as heterosexual acts.

Campos said she is open to refining her measure.

The loophole over underage consent to sex was opened by a 2001 California Supreme Court decision, in which the justices noted that the Legislature had removed non-forcible sex with minors from the state’s rape laws in 1970, Drobac said.

In doing so, the court said, legislators “implicitly acknowledged that, in some cases at least, a minor may be capable of giving legal consent to sexual relations.” That language has been picked up by other courts in other cases, Drobac said.

“It’s a duplication of errors that is creating this horrific situation in California and other states,” Drobac said.

But Campos said her measure will clear up any ambiguity over legislative intentions on the issue. “It’s not a gray area,” she said. “It’s black and white.”

Twitter: @TeresaWatanabe