Can a child give consent to a sexual relationship with an authority figure? If the child consents, do they share liability? These are questions recently asked in S.M. v. L.A.U.S.D.
The case started in 2010 when the then 13-year-old student was targeted by her teacher, Elkis Hermida, for special attention. This attention consisted of contacting her outside of school through social media and texting about sexual topics. He eventually invited her into his classroom to spend time with him. The relationship eventually escalated first to kissing and hugging, then sexual intercourse on and off-campus.
Hermida was charged and convicted of lewd acts with a minor and sentenced to a three-year prison term.
During trial, lawyers for the LAUSD argued that the district did not nor could have known that Hermida was entering into a sexual relationship with the student. This lack of knowledge released the school district from liability in the abuse. In addition, the legal team argued that the student bore partial liability because she consented to the relationship and lied to authorities, including her parents and teachers, about the relationship.
This argument predictably caused a major PR issue for the district. But, hidden in the media storm created by this legal argument was a very important question: was the school district liable even though it did not know about the relationship?
The jury agreed with the district’s lawyers, and the suit was rejected. Her lawyers appealed the decision, which eventually led to the Court of Appeal hearing and reversing the decision.
“The Court of Appeal explained that the school district could be held liable based merely on the “potential” that the teacher would sexually abuse students and that this potential could be shown by “red flags” in the teacher’s conduct, such as routinely hugging and caressing the hands of certain female students, discussing his personal life with certain female students and creating a “hidden alcove” in his classroom (where sexual abuse of the plaintiff occurred). This conduct, while not explicitly sexual, arguably violated the L.A.U.S.D.’s Code of Conduct for teachers. School administrators had at least constructive notice of the conduct, and had they effectively addressed it, according to plaintiff’s school safety expert, they likely would have prevented the abuse of plaintiff from occurring.” Roger Booth
In short, the district should have known of the potential for an inappropriate relationship to occur because of the multiple “red flags.” Despite not having a record on sexual misconduct, the red flags were enough for the district to have taken action, possibly preventing the abuse to occur. This precedent makes it easier for sexual abuse victims to hold institutions liable when they fail to protect the children in their care.
Further Reading: Defining the Standards for Institutional Liability in Sexual Abuse Cases by Roger Booth