In an alarming court case from last November, lawyers representing the Los Angeles Unified School District successfully argued that a 14-year-old girl involved with her 28-year-old teacher consented to having sex.
Elkis Hermida, a math teacher at Thomas Edison Middle School in Los Angeles, entered into a sexual relationship with a student in December 2010 that lasted six months. After being convicted of lewd acts against a child in July 2011, Hermida was sentenced to three years in prison. The student's family filed a lawsuit against the school district, alleging that they were negligent in preventing the relationship.
According to an extensive report by KPCC, the school district's lawyers fired back during the three-week civil suit that the girl "knew what she was doing when she chose to have sex with Hermida and suggested the girl was to blame for her situation."
"She lied to her mother so she could have sex with her teacher," Keith Wyatt, the school district's attorney, told KPCC. "She went to a motel in which she engaged in voluntary consensual sex with her teacher. Why shouldn't she be responsible for that?"
The foundation of the school district's defense, KPCC reports, was an arguably insidious interpretation of a 2009 ruling:
Wyatt cited a 2009 legal ruling by the US District Court for California's Central District that said in certain circumstances a minor can consent to sex. That ruling, in the case of Doe v. Starbucks, cited a 2001 decision by the California Supreme Court in a criminal case, People v. Tobias.
In Tobias, the supreme court argued that when the state legislature added the crime of "unlawful sexual intercourse with a minor" to the penal code in 1970, the lawmakers "implicitly acknowledged that, in some cases at least, a minor may be capable of giving legal consent to sexual relations."
In its Doe ruling, the District Court went on to cite another court decision as grounds for its conclusion that "the rule that 'a minor may be capable of giving legal consent to sexual relations' has been extended to non-criminal cases."
The school district also argued that the girl and her family were motivated by money to sue. "She wants to be paid for doing something that she knew was wrong, that she acknowledged was wrong, that she knew was from the beginning," Wyatt said. "She doesn't want therapy, she wants money. That's what they are asking you for."
Legal experts consulted by KPCC condemned the school district's defense for taking advantage of a "little known conflict" in California legislation:
while the age of consent is firmly set at 18 in criminal cases, at least two appellate court rulings have found that in civil cases, it is possible to argue that a minor can consent to sex with an adult.
"This reasoning is incoherent, especially in the school context," Marci Hamilton of the Benjamin N. Cardozo Law School in New York, told KPCC. "It would have the court focus on the child's consent without taking the authority and power of the adult into account...This reasoning takes a page out of the old 'consent' defenses for rape based on a woman's sexual history, which have been thoroughly discredited."
[Image of Hermida via California Department of Justice]