Crime & Justice

LAUSD can't fault 14-year-old for her own sexual assault, court rules

Former LAUSD teacher Elkis Hermida was convicted in 2011 of lewd acts with a child and sentenced to three years in state prison.
Former LAUSD teacher Elkis Hermida was convicted in 2011 of lewd acts with a child and sentenced to three years in state prison.
California Department of Justice

An appellate court has ruled that the Los Angeles Unified School District can't blame a 14-year-old student for her own sexual assault or introduce evidence showing her prior sexual history, according to the ruling, obtained by KPCC.

In a 3-0 ruling, the California state Court of Appeal reversed the lower court's ruling in the case. It involves a former Edison Middle School student who had sex over the course of seven months with her teacher, Elkis Hermida, in 2010 and 2011.

"We're happy and pleased with the Court of Appeal's opinion and grateful that they've stepped in and put an end to the district's position," the girl's counsel, Holly Boyer, told KPCC.

Hermida was sentenced to three years in prison in 2011 for lewd acts against a child, but in the civil suit that followed, the jury ultimately ruled that the district was not negligent for failing to prevent that 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 said was irrelevant.

The district also argued that the girl could be found partly at fault since she'd hidden the relationship from school officials and family members, thereby making it impossible for them to have prevented it.

In its decision, the court of appeals wrote:

The victim of a crime does not bear any responsibility for the harm she suffers from the crime. Thus, a minor’s purported consent to a crime is simply not relevant in a tort action against a school district for damages arising from the sexual abuse of a minor by a teacher. Specifically, in this case, plaintiff’s purported consent to Hermida's crimes is not in any way relevant to the issue of whether the District negligently supervised Hermida, or to whether she suffered damages as a result of that supervision.

The appeals court also found that the judge in the civil trial had erred in instructing jurors to decide whether the district should have known that the teacher had a "propensity" — rather than the "potential" — to abuse a child.

The appeals court ruled that only proof of past abuse could have satisfied such a high bar for finding fault.

"Indeed, no first victim of a predatory teacher would have a remedy, since he or she could not prove propensity," the court wrote. "This is not the law."

The appeals court also found the civil court judge had also erred in allowing evidence of the student's prior sexual history.

"The jury asked a significant number of questions about plaintiff’s sexual history which indicated an improper and irrelevant interest in the topic," it wrote. "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."

The case prompted the passage of bill in July barring defendants in civil suits accused of sexually abusing minors from arguing that the sex was consensual.

You can read the appeals court's opinion below:

Document: Appeals court decision

This story has been updated.