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LAUSD district lawyers argued in court that a middle schooler can consent to having sex with a teacher twice her age.The case is an interesting if disturbing one. Elkis Hermida, 28, was a math teacher at Thomas Edison Middle School in Southeast L.A. Starting in December of 2010, he carried on an inappropriate relationship with a 14-year-old student for six months. He was sentenced to three years in prison for lewd acts against a minor in July of 2011, KPCC reports.
But in a civil suit last November, LAUSD's attorneys argued that even though the girl was a minor, she consented to the sex. Here's what interesting: when dealing with a criminal case like the one that earned Hermida three years behind bars, 18 is always the age of consent. However, in civil cases, it doesn't have to be. There are two state appellate court rulings where it's been successfully argued that a minor can give consent: 2001's People v. Tobias where a 38-year-old father had a relationship with his 16-year-old daughter; and 2009's Doe V. Starbucks, where a 24-year-old supervisor at a Starbucks had a sexual relationship with a 16-year-old employee.
In the Tobias case, they had to determine if a minor who consented to incest could also be considered an accomplice to incest. While the court ultimately decided that it is the adult who must refrain from sex, not the minor, the Supreme Court did say that when lawmakers wrote that "unlawful sexual intercourse with a minor" was a crime in a 1970 penal code revision, then lawmakers must have meant that at least sometimes, a minor could consent. And in the Doe case, the District Court cited a different case to conclude that in non-criminal cases, a minor could give consent. So while a minor is always a victim in a criminal case, that same victim might be at fault in the civil case.
When the girl's family sued LAUSD for the emotional damage done to their child by her relationship with Hermida, the district's lawyers fired back, claiming that the suit was about money not emotional harm.
They said that the girl was at least partially to blame for what had happened. They said that she had lied to her mother and went to a motel specifically to have sex with Hermida, knowing what she was getting into. Judge Lawrence Cho also allowed the district lawyer's to talk about the girl's sexual past during the trial, which is something that is not allowed in a criminal case due to the "rape shield" law. The girl's name also appeared on the jury form, which would allow the jurors to find her at fault, or "comparatively negligent," which would reduce the amount of money her family could receive in damages.
LAUSD lawyer even told KPCC, "Making a decision as to whether or not to cross the street when traffic is coming, that takes a level of maturity and that's a much more dangerous decision than to decide, 'Hey, I want to have sex with my teacher.'"
Meanwhile, Jennifer Drobac, a professor of law at the Robert H. McKinley Law School at Indiana University, thinks the dissonance between consent laws in California criminal trials and California civil trials doesn't make any sense.
""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," she told KPCC.
The case, however, came down to whether LAUSD was liable. The jury eventually decided that the district was not at fault and did not know what was going on. The case is being appealed by the girl's lawyer.
