In LAUSD teacher abuse case, 13-year-old student's sexual history, responsibility still at issue

Attorneys for the Los Angeles Unified School District and a 13-year-old who had sex with her 8th grade teacher continue to argue over whether the girl's sexual history should have been admitted as evidence in her suit against the district.

The teacher, then-28-year-old Elkis Hermida, was convicted of lewd acts against a child and sentenced to three years in prison.

In the civil suit against the LAUSD, the jury ultimately ruled that the district was not negligent in failing to prevent the relationship. That decision was appealed, in part, because attorneys for the girl say the jury was tainted by the admission of her sexual history — which they say is irrelevant. 

Her attorneys say that LAUSD continues to argue that the 13-year-old was partially responsible for her abuse by failing to notify officials of the relationship. 

L.A. Unified attorneys told KPCC their argument continues to focus on whether school officials knew or should have known about the relationship, and that their defense in the appeal is that the jury correctly determined the district could not have known. 

"The issue on appeal was whether or not the jury was correct in determining that the district did not know about the activity between the student and the teacher and whether, under the circumstances, we should have known," said LAUSD counsel Gregory McNair. 

"We did not know what was going on. That was our defense in the trial court and that continues to be the defense in the court of appeal." he said.

The issue of which party or parties bear responsibility for the relationship was never considered by the jury, LAUSD attorneys said in court documents, since the district was found not to have been negligent.

Still, the documents also show that LAUSD argued that the girl's "sexual history is relevant when the plaintiff claims damages to her sexuality" and contends that in California "the presumption that a minor cannot consent to sex is obsolete."

The brief goes on to say that the relationship between the student and teacher was "not forced and that plaintiff facilitated the encounters by lying to others and keeping the incidents a secret — thereby preventing the District from discovering the situation and taking steps to protect her."

That, the girl's lawyer told KPCC, is tantamount to arguing she's partly responsible for the sexual abuse.

"It's still placing blame on the child, such that she should bear some responsibility for her damages," attorney Holly Boyer told KPCC. "They're arguing that she's partially responsible for her harm [...] essentially because she didn't protect herself against the sexual abuse or tell anybody about the abuse."

The case drew widespread attention after KPCC reported on the thrust of the school district's argument last November. After appearing on KPCC's Airtalk, LAUSD attorney W. Keith Wyatt was removed from the case. His remarks also prompted 3 California bills seeking to close a loophole over consent in the law.

In July, Gov. Jerry Brown signed a measure blocking defendants in civil suits who are accused of sexually abusing minors from arguing that the sex was consensual.

The Court of Appeals is expected to take a position in the coming weeks, Boyer said,  either reversing the jury's decision and ordering a new trial or siding with LAUSD. 

Boyer said she hopes the court will also take a position on whether a child can be comparatively at fault for sexual abuse by a teacher.

You can read the appeal, as well as LAUSD's response and lawyers for the student's responding brief below: 

Appellant's opening brief

Document: Appeal

LAUSD responding brief

Document: LAUSD response

Appellant's response

Document: Plaintiff's response