LAUSD cannot blame 14-year-old for own sexual assault, appellate court rules

The Los Angeles Unified School District cannot blame a 14-year-old girl for her own sexual assault or introduce evidence of her prior sexual history in a case involving her teacher, an appellate court ruled Wednesday.

The state Court of Appeal voted 3 to 0 to reverse a lower court’s rulings to allow attorneys to include such information in the case of a former student at Edison Middle School who was coaxed into sex on and off campus by her teacher, Elkis Hermida, over seven months in 2010 and 2011.

Hermida was convicted of lewd acts with a minor and sentenced to three years in prison in 2011. Two years later, a Los Angeles jury rejected the girl’s claims that the district was negligent in supervising Hermida and was liable for her emotional damage, prompting the appeal.

In the appeal, the girl’s attorneys argued that Judge Lawrence Cho erred in allowing evidence of the student’s prior sexual history and permitting the district to argue that she was partially at fault in her own abuse.

The state Court of Appeal agreed, reversing Cho’s decision and ordering a new trial.

“On appeal, the District continues to maintain that a minor student who is the victim of sexual abuse by a teacher bears responsibility for preventing that abuse. The District was wrong in the trial court and is wrong now,� Judge Richard H. Kirschner wrote in his decision. “There is no case or statutory authority or persuasive reasoning supporting the notion that students sexually victimized by their teachers can be contributorily responsible for the harm they suffer.�

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The decision elated the girl, according to her Los Angeles attorney, Frank Perez.

“We are all super grateful,� Perez said. “Our client needed to be vindicated and needed to hear it is not her fault. The jury, due to what we now know were the [trial court’s] wrong rulings, affirmed the shaming and blaming of a child victim.�

L.A. Unified spokeswoman Shannon Haber said the district was reviewing the decision and had no further comment at this time.

L.A. Unified General Counsel David Holmquist had previously said that the key issue in the case was not whether the girl bore any responsibility for her abuse, but whether the district knew or should have known that Hermida was abusing her. He said the jury properly decided that the district was not liable.

In its appellate brief, L.A. Unified’s attorneys said the girl was partly responsible because she lied to her parents and teachers to conceal a voluntary sexual relationship with Hermida and “therefore thwarted the District’s ability to find out about it and stop it.�

They also said it was proper to include evidence of her past sexual history to evaluate her emotional distress.

In any case, the district argued, the jury didn’t consider either the issue of responsibility or past sexual history because it based its verdict on a finding that the district did not know or have reason to suspect Hermida and therefore was not negligent.

But the appellate court said the girl’s sexual history and alleged consent were discussed throughout the trial. Kirschner wrote that such discussions “wrongly portrayed her in a negative light and was highly prejudicial.�

The girl’s appellate attorney, Holly Boyer of Pasadena, had argued that district assertions that the student bore some blame ignored the “grooming� process that sexual abusers often undertake to disarm young victims.

Hermida first reached out to the girl on social media when she was 13, then moved to texting about “secrets� such as sex. He then began inviting her to his classroom, where they kissed and eventually had sex on campus and at nearby motels, according to court papers.

In July, Gov. Jerry Brown signed into law a bill that bars defendants accused of sexually abusing minors in civil suits from arguing that the sex was consensual. The bill, SB 14 by Sen. Ricardo Lara (D-Bell Gardens) was prompted by the L.A. Unified case.

Twitter: @TeresaWatanabe

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UPDATE:

4:50 p.m.: This post was updated with response from L.A. Unified.

The first version of this post was published at 4:05 p.m.