This is the story of the LAUSD’s depraved defense.
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Criminal trials are hard on child victims. Since Elkis Hermida pleaded no contest rather than not guilty, M.S. could’ve been spared a lot of what victims of sexual abuse go through when aggressive defense attorneys try to impugn their character.
Instead the LAUSD made the civil trial needlessly hard on a 14-year-old that it had already failed to keep safe (though whether it acted negligently or not is as yet undetermined). In February 2013, the school district filed a motion to compel a mental evaluation of M.S. “and to permit questioning of plaintiff about her sexual history.”
The motion was denied.
In October 2013, M.S. moved “to preclude evidence of her sexual history.” The LAUSD opposed that motion too—that is to say, an institution with more than 655,000 students kept fighting to probe the sexual history of an eighth grader molested while in its care. “When she’s claiming emotional distress from having been involved in a sexual relationship with a teacher,” the school district argued, “but she’s also having sexual relations with other people during this same time period, then that’s relevant to her contentions that she’s going to suffer emotional distress.”
The LAUSD cited Dr. Stan Katz, a clinical and forensic psychologist that they hired as an expert witness. In a deposition, defense counsel asked him, “So you’re saying that victims of sexual abuse who had prior sexual experiences are less traumatized than those who haven’t?” To which Katz responded, “They certainly can be.” The expert witness made another statement that the appeals court flagged:
Dr. Katz testified that he believed the relationship made plaintiff more mature. “It always matures someone because you have to go through experiences which most teenagers don’t have to deal with. So you learn by experience.”
When asked his opinion as to plaintiff’s future prognosis, he stated that plaintiff is doing “quite well” and likely will not need future counseling as a result of the abuse.
Think about that.
In a court of law, America’s second-largest school district willfully advanced the argument that an 8th grader who has oral, vaginal, and anal sex with a teacher learns maturity from the experience and is unlikely to ever need counseling as a result.
Incredibly, the trial court ultimately allowed the defense to inject the plaintiff’s sexual history into its arguments, bungling the relevant law and prejudicing the jury.
The LAUSD also raised another discrediting argument.
As the appeals court put it:
The District then exacerbated the prejudice by using plaintiff’s relationships with boys to argue that she was sophisticated and could, in effect, voluntarily consent to sex with Hermida. They argued during closing:
“And no matter what you say about her mind being overcome, from some reason, by Hermida, Hermida wasn’t in her classroom. That was a decision she made. And what did [her friend] Andromeda tell you about plaintiff coming back from one of those episodes? Coming back into the classroom after having met with Hermida and had some sexual acts occur. Me and Hermida just had a quickie. A quickie. And at first she tried to act like she didn’t know what it was, and then she acknowledged what it was. Now, a quickie, is that a language or thought process of a naïve person, a person that doesn’t know what’s going on, a quickie?”
The second-largest school district in America argued that a 14-year-old’s knowledge of sexual slang that appears frequently in popular culture should lead us to conclude that she is more able to consent to sex with a teacher who was twice her age.