California school district hides the abuse, blames the victim

49 thoughts on California school district hides the abuse, blames the victim

1. Fuck. People.

2. I am put in mind of a bit of spam:

   Unfortunately, as you probably already know, people

   —Horse ebooks (@Horse_ebooks) July 25, 2012

   1. LOL. I think I may take this as my email signature.

3. Honestly, as a lawyer, this does not outrage me. Not because I think that such a defense would be acceptable in any way, shape or form. And if I were a judge I would flatly disallow any such argument to be presented to a jury. But answers to complaints are little-read documents (literally, judges usually don’t read them) where it’s common to cut and paste basically a laundry list of every “defense” that has ever been used in any situation since the beginning of time. And the lawyer for the school board is correct that the reason this is done–in all matters, not just this one–is that any defense not raised is considered waived. Whatever very low-level lawyer drafted this probably just pasted from some other document, and it may not have even been reviewed by anyone with any real authority, or evidently common sense. I’ve fortunately never been involved in a litigation dealing with issues as sensitive at the ones at stake in this case, but I’m quite sure I’ve written an answer to a complaint that asserted defenses equally as stupid and inapplicable.

   Perhaps lawyers should be more careful about stock language when drafting papers in cases such as this. That’s a legitimate discussion to have. But the fact that this “defense” appears in the answer they filed really does not mean a) that they intend to assert it b) that they ever discussed or considered asserting it c) that anyone ever gave any thought at all to the issue of whether it should be asserted. It was almost certainly cut and pasted from basically every other filing those lawyers have done since the beginning of time. “The Plaintiff caused his/her own injury” is a stock defense that gets pasted into every answer that gets filed in every tort case.

   1. Honestly, as a lawyer, it outrages me more. Our rules of professional conduct should prohibit us from making claims like this. Our rules of professional conduct should not force us to further victimize a complaintant in the name of a vigorous defense. You’re right that the actual attorney’s probably didn’t do it on purpose, but that doesn’t excuse the outcome, it points to the source. Legal practice – as an institution – needs to be reformed.

      1. Exactly. It’s not just about the school’s choice to include this defense, but about a much larger problem that that choice simply points to.

      2. I think this calls for state statutes barring these defenses as a matter of law. Then, defense lawyers could omit them without giving anything up, and if they were raised in pleadings, the plaintiff’s lawyer could have them stricken and possibly even seek frivolous practice sanctions.

         I’d keep the statute proposal minimal, though, tailored specifically to defenses pleaded against minors in cases of sexual molestation.

         Here’s my first crack at statute language:

         “Notwithstanding any other provision of law, it shall not be a defense in any civil claim arising from sexual contact between an adult and a person who was a minor below the age of consent [possible statute reference here, adapt language to the term of art in state law] at the time of the alleged event, that the minor was negligent or reckless concerning, or acceded or acquiesced to, sexual conduct which was unlawful at the time it was alleged to have occurred.”

         note that “concerning” is broad; that would sweep in a defense that the minor was negligent in failing to report. My language might not cover a defense of deliberate concealment by the minor, but then, most of the cases I’m thinking of, if deliberate concealment actually prevented a school or organization from having the requisite knowledge, they wouldn’t be liable anyway. Maybe deliberate concealment ought to be specifically barred as to the actual molester, but I’m not sure that’s really necessary in practice.

   2. Susan,

      This seems to me to be a Rule 11 issue (or the analogous local court rule). It’s one thing to assert every possible defense, but it’s another to assert a defense blindly when there is no conceivable set of facts under which the defense could be valid.

      But it’s been 15 years since I was in private practice, I practiced in a reasonably small city where everyone knew everyone else, and maybe things are different in this day and age and in California.

      1. Since the inception of Iqbal which expended the Twombly pleading specificity requirements to all cases, it has become increasingly common for plaintiffs’ lawyers to seek to make defense counsel plead their affirmative defenses with specificity. Practically, in fed court, if I were plaintiff’s lawyer, I would take the approach of an Iqbal motion against those affirmative defenses, since they didn’t specify the conduct that makes out the factual support for the asserted defense. Then the defense has the choice of withdrawing it as a bullshit defense with no support that they pleaded just to cover the waterfront, or of actually putting in writing what they allege in support of that defense. The latter would be horrifyingly ugly, and I think in many cases would risk both a PR disaster and alienating the judge so much that they’d make a serious decision about whether to go full victim-blame or not. Sadly, some defendants would choose to make victim-blaming the centerpiece of the defense. However, I think a lot, forced to choose, would jettison that defense early and go with a defense that centered on how good the molester was at concealing and misleading.

   3. But the fact that this “defense” appears in the answer they filed really does not mean a) that they intend to assert it b) that they ever discussed or considered asserting it c) that anyone ever gave any thought at all to the issue of whether it should be asserted.

      That doesn’t actually make it better, though. That’s just “they’re not assholes, they’re just sloppy.” Well, if your sloppiness causes assholishness, then you’re an asshole as well as sloppy.

4. Lord, am I depressed that this sounds familiar.

   For years my mostly-undocumented elementary school was preyed on. He was one of the bilingual teachers and groomed relationships with vulnerable students, inviting families over to his home, etc, while molesting their daughters and taking absolute advantage of the parents’ position. Rumors circulated for years but parents didn’t start coming forward to the administration until my 4th grade year. Our charming principal also disregarded complaints, allegedly threatening parents with phone calls to INS if they persisted. Teacher still had his job until the next year, when someone finally contacted the police. Enjoying seeing my principal being led out in handcuffs is a piece of youthful schadenfreude I am still not ashamed of. The teacher was tipped off but was later arrested abroad.

   Same story, different place. Administrators and teachers hold all the power and credibility. Stories like these make me think our entire educational structure is broken.

   Moraga is also an affluent area, so if there were any decent human beings making decisions for the school district they could just settle already and save everyone this disgusting legal exercise.

5. Yes, I’ve read about this case. I don’t know what to say about it, other than that stuff like this is why I decided I did not want to be a lawyer.

   1. I do want to be a lawyer (if law school doesn’t squash my will to live), but I have chosen not to practice in areas of law where I would be forced to make these kinds of arguments.

6. Disgusting – that is all.

7. So even in heinous cases like this, the bug letter is still big business. Disgusting.

8. This is going to upset people (justifiably), but it’s the way the legal system works.

   The school district is obviously awful and full of awful people who turned a blind eye to sexual assault in their midst. HOWEVER, everyone is entitled to a legal defense in the U.S., and the language in the district’s Answer which this article is complaining about is boilerplate language which is used in virtually EVERY answer to EVERY negligence action. The author is correct that every answer not asserted is deemed waived, but misses the point that waiving a defense, no matter how slimy your client’s wrongdoings, opens the attorney up for a big ol’ malpractice suit. Lawyers are required to advance every argument they think may benefit their client – it’s in the rules of civil procedure, and it’s in the Rules of Professional Conduct. To me, the shitty part of this is that the school district is even choosing to litigate in the first place, but since they have, the unfortunate attorney they’ve chosen is required to do everything in its power to advocate for them.

   1. the shitty part of this is that the school district is even choosing to litigate in the first place,

      Yeah. This. Sorry, but a kid gets victimized (multiple times even!) under your watch and the only appropriate response should be “Holy fuck, we’re sorry, how the hell do we make it up to you?”

      1. Yeah. This. Sorry, but a kid gets victimized (multiple times even!) under your watch and the only appropriate response should be “Holy fuck, we’re sorry, how the hell do we make it up to you?”

         But that might cost a couple of dollars or require a change in policy or might make someone with some clout uncomfortable. Can’t have that.

   2. The author is correct that every answer not asserted is deemed waived, but misses the point that waiving a defense, no matter how slimy your client’s wrongdoings, opens the attorney up for a big ol’ malpractice suit.

      Only if “you caused your own sexual abuse” is considered a reasonable defense in the first place. I’m assuming the lawyer did not put forward “aliens used a mind-control ray to prevent the school authorities from taking action” as a defense, because that is absurd on the face of it. “You caused your own sexual abuse” should fall into precisely the same category.

      1. Hell yes exactly. Its not “every fucking defense out there plus the kitchen sink” its every argument that could reasonably be considered to benefit the client.

         Lawyers are required to advance every argument they think may benefit their client

         How could this benefit the client if its patently ridiculous? Whatever happened to only asserting arguments that you can make with a straight face? I’ll tell you why I think this defense was asserted: our rape culture has made the attorney and client involved actually think, in their small, tiny little heart of hearts, that the victim — a child — could, possibly, even a little bit be at fault. This just goes to show you how our rape-culture has influenced hearts and minds. It goes to show you how victim-blaming has penetrated our consciousness and morality. Shame, shame, shame on us.

         And to some of the lawyers above: this is why I got out of the legal profession. Its disgusting to me that this defense is being asserted and its disgusting to me that you would defend the rationale behind asserting it. As EG said above, its as ridiculous as asserting that the child was actually molested by an alien that appeared to be the adults in question. The only way you defend the assertion of that defense? If some part of you thinks that its reasonable or rational in any way.

         1. It’s very easy for me to imagine someone claiming, and even believing, that she caused her own molestation. It’s disgusting and evil, but views like that permeate society. Since it’s an argument that, on some level, a disturbingly broad selection of people might consider or even agree with, that seems to make it a defense that the lawyer is obligated to introduce even if they never use it or even consider using it.

            On a broader note, yeah, there is no good to be found here except that this crime is being exposed now, and future harm is hopefully prevented.

         2. Since it’s an argument that, on some level, a disturbingly broad selection of people might consider or even agree with, that seems to make it a defense that the lawyer is obligated to introduce even if they never use it or even consider using it.

            A large number of people believe in God, but “God did it” isn’t an acceptable legal defense.

         3. The only reason “god did it” isn’t an acceptable* defense is because it doesn’t work. Claiming that a harm is the victim’s fault does work.

            *Acceptable in the sense that it’s applicable or potentially feasible, not that it’s moral or even remotely decent.

   3. Shit like this is why I correct my students to “legal system” when they say “justice system.”

9. This makes me so incredibly angry. I’m not sure if I can handle anymore stories like this… it makes it so hard not to hate people, and I don’t want to hate people. :::sigh::: FUCK. I either need a stiff drink or a tiny kitten to play with.

10. Doesn’t surprise me, not at all. This is what happens when you give generally unaccountable people enormous amounts of power over the powerless. It happens in churches, it happens with the BSA, it happens in families, it happens in prisons, it happens in hospitals, it happens fucking everywhere because, as a culture, we value authority and obedience and the rights of those in charge more than rape victims. We see it time and again, in every horrifying permutation imaginable, and still somehow manage to feign shock and wring our hands while disingenuously asking “how did this happen?” It happened because we let it, it happened because we have accepted that child rape is an acceptable cost with which to buy the gains of various systems that train people to sit down and shut the fuck up so they can be told what to do.

    In my high school there was a teacher who everyone knew designed seating plans around breast size. Top heavy girls sat up front for convenient ogling, boys and less endowed girls in back because there was nothing for him to stare at. Jokes were made about it, everyone called him a creep, but even though I’d heard other teachers make comments about him nothing was ever done. I suppose that was because, in the grand scheme of things, he wasn’t a big deal. I mean he was just staring at students. Why on Earth should anyone expect something to be done about him when a teacher was widely known to choose a sophomore or junior each year to have an affair with and no one took action. Even after getting caught nothing was done. Maybe he had tenure. Maybe its hard to fire a teacher who preys on students. Maybe no one really gave a shit.

    At least the school came down hard on the real dangerous elements, though, like the kid with too many safety pins in his jacket or the special ed student who wasn’t appropriately servile. The police sure had time to talk to us…

    1. Yes. In my high school, a French teacher sexually harassed students all the time, and during films, would sit behind my best friend and run her shoulders and nobody said word one. Asshole knew just which kids to prey on, too. The ones without recourse.

    2. when in my school, was weird teacher of the chemistry with the high trousers, few hairs. would often have many girl in his class room during the lunch time, few boy. was to friendly with girl, very creepy.

11. My disabled brother was physically and mentally abused by his teacher. He was kicked out of the school. The teacher who abused him still works at the same school, with kids with disabilities, 20 years later.

    The school covered it up. And threatened to make sure I’d fail my senior year if it was taken to the police. My parents couldn’t afford to send me to another school. We were in a rural area, this was the local public school. My parent trusted the Department of Community Services to investigate. They were promised she was leaving teaching so more students would be hurt. Nothing was done.

    I have no faith in the education system, in teachers who cover for abusive teachers.

    My brother is still afraid of the dark. Still has trauma he can’t understand.

    1. I remember a similar teacher from kindergarten. To this day I still have a significant scar on my face because “bad little boys don’t deserve band aids.” When I found out in high school that she was still a kindergarten teacher I decided that bad teachers didn’t deserve to not have their cars regularly and seriously vandalized. I suppose thats the danger of denying people justice, some of us will end up looking for our own.

       1. Holy shit. Who the fuck does that? Nobody who should ever be in a position of authority over children, that’s who.

          1. When my mother complained the response she got was something in the neighborhood of “she has tenure, theres nothing we can do.” Welcome to Chicago.

12. Um, wow.

    The idea they’d plead a particular defence because otherwise they would not be able to rely on it – and only for that reason – is so alien to me.

    In my state in Australia, and I think in most (if not all) others, it has been a requirement for a long time that, in damages cases, both the plaintiff’s claim and the defence must have reasonable prospects of success (ie that it’s arguable – it’s essentially the straight face test). The lawyer has to certify, on the document itself, that it has reasonable prospects.

    Even “providing legal services” where there is no reasonable prospect of success is a disciplinary matter.

    It would also be required, in most cases, to particularise the defence more than seems to be needed in the USA.

    So I can imagine – for the cultural types of reasons mentioned in this thread already – that this kind of defence would be made, but they’d have to be more explicit in the first place and they couldn’t say “oh, we just pleaded it just because”. They’d have to own it (and take the consequences – again, referred to above – of owning it).

    From what a few people have said above, it looks like there are some moves towards that in at least some USA jurisdictions. Seems like it can’t come soon enough.

    1. it has been a requirement for a long time that, in damages cases, both the plaintiff’s claim and the defence must have reasonable prospects of success (ie that it’s arguable – it’s essentially the straight face test). The lawyer has to certify, on the document itself, that it has reasonable prospects.

       It isn’t so different in the USA, whether in federal courts under Rule 11, or in state courts. I actually don’t agree with having to certify that a claim or defense has a reasonable prospect of success (for many reasons, including the fact that outcomes are so unpredictable), and actually prefer the US standard, which provides that any attorney signing a pleading or paper (all of which must be signed) thereby certifies that “to the best best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

       (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

       (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

       (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

       (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

       (Quoting from Rule 11 of the Federal Rules of Civil Procedure, which dates back to the 1930’s).

       As far as I’m concerned, this defense egregiously fails to meet that standard, and if anyone bothered to seek them, I would argue that sanctions should be imposed.

       Also, it’s nonsense that they couldn’t rely on a defense later if they didn’t plead it initially; in the event that evidence actually turned up supporting it (or Zeus said so from a thundercloud, which seems equally likely), they could always seek to amend the complaint to add such a defense.

       So, pfui to those trying to justify pleading the defense. A lot of negligence defense lawyers are notorious for pleading the same garbage “boilerplate” defenses in every case regardless of whether they have anything to do with the facts, and it’s time they got called on it. Especially in a case like this.

       1. I should add that I do have a certain amount of experience — more than I care to say! — with being a civil litigation attorney in federal and state courts.

          1. A great deal more, I have no doubt, than any of the people trying to justify this.

       2. Good to know that the arguments being put forward are pretty much nonsense!

          Given that, I suspect there’s actually pretty close to convergence in practice.

          FTR having to certify reasonable prospects is not as onerous as it might sound – it doesn’t mean the lawyer thinks it definitely will win (again, it’s more the straight face test), and it doesn’t require foresight, as it’s based on what’s reasonable in light of what is known at the time.

          It’s pretty rare to have the test discussed in court, but (and partly because) courts give lawyers a fair amount of leeway. So it’s really there to prevent lawyers taking unarguable cases to court and wasting everyone’s money.

          1. Thanks for clarifying. In practice, the standards do sound not very different.

             One of the problems in enforcing them here is that although judges do generally have the power to invoke violations of such rules on their own initiative, it’s usually up to the other side to raise it. And a lot of the time, especially when it comes to boilerplate defenses like this that may never be mentioned again after the answer is filed, the opposing lawyers simply don’t bother. They don’t feel it’s worth it. In a high-profile case like this, where the circumstances are so egregious, it seems to me it’s definitely worth it.

          2. A significant difference, then, which I noticed before as well, might be our pleading rules. We seem to take the pleadings to be a far more central part of the process than in the USA. Possibly because, apart from a limited role in defamation, we just don’t have juries in civil matters any more.

             Our judges also have a strong case management role, and I think the USA hasn’t gone quite so far in that regard. (?)

             On enforcement, for an egregious breach, someone might seek a personal costs order against a lawyer, but again, that is rare.

          3. A significant difference, then, which I noticed before as well, might be our pleading rules. We seem to take the pleadings to be a far more central part of the process than in the USA. Possibly because, apart from a limited role in defamation, we just don’t have juries in civil matters any more.

             Can I just say that I am really enjoying this tangent? I love hearing from the other, more experienced & the non-US lawyers on this board.

13. Disgusting, but not surprising.

    It’s exactly what the Republic School District said 2 years ago, when they allowed a female student to be raped, then expelled her for reporting her rape, as well as making her write an apology to her rapist. Who then raped her again.

    “The girl failed and neglected to use reasonable means to protect her self”

    –(Lawsuit filed against Republic School District over rape claim)

    Because you know, it is apparently children’s responsibility to defend themselves from criminals. Not the police, not the school districts, not other teachers, not the community.

    Possibly of interest: earlier this year the California Teacher’s Union killed a bill that would have made it easier to fire or suspend California teacher’s who are accused of sex crimes. Of course the bill had to be killed. It was SO unfair to teachers. As the California Teaching Association’s own site says of the bill, “It would also grant districts the discretion to submit old information about prior issues of misconduct as evidence related to current charges.” I mean, can you imagine? Old allegations of sexual abuse being used as supporting evidence in current sexual abuse cases? Can’t have that. (California bill on teachers accused of sex crimes fails)

    I am so sick of what is being allowed to happen schools. There is no excuse for what is being allowed to happen to children. There aren’t even words.

    1. Possibly of interest: earlier this year the California Teacher’s Union killed a bill that would have made it easier to fire or suspend California teacher’s who are accused of sex crimes. Of course the bill had to be killed. It was SO unfair to teachers. As the California Teaching Association’s own site says of the bill, “It would also grant districts the discretion to submit old information about prior issues of misconduct as evidence related to current charges.” I mean, can you imagine? Old allegations of sexual abuse being used as supporting evidence in current sexual abuse cases? Can’t have that.

       Wait, wait, wait, wait, wait…do you mean to tell me that a Teacher’s Union sought to protect bad teachers from accountability and responsibility over the interests of the children they teach? I’m shocked….I thought they were supposed to be heroes. Like Cardinals. And Scoutmasters.

    2. That just makes me so ashamed to be a member of UFT.

14. So a thread about victim-blaming just segued into Union-bashing for funsies or what?

    1. Sorry, not going to get much sympathy here. This is a thread about victim blaming, yes, but that victim blaming has a context. The context is that school systems do not display merely an abject failure to protect children from abuse but an active attempt to perpetuate that abuse and deny children justice in order to maintain their funding and power. Unfortunately, a lot of that perpetuation of abuse and protection of abusers comes from organizations which serve to maintain the power of the privileged over the powerless.

       When theres a labor dispute everyone flocks to the teachers unions because we have this sense in our culture that teachers are sainted, selfless heroes and that school boards are monstrous. Sometimes that is true. But some of us have seen the other side of what the negotiations of teacher unions have lead to; we have seen not only the fair wages and good benefits but the hiring and firing rules which allow predatory teachers to remain on the job with access to children. What all too often gets lost here is that teachers, while holding substantially less power than mayors or school boards or administrators, possess an enormous amount of power over one of the most powerless groups of human beings in the world.

       Unions are great, they are a vital part of our society, they are under grave attack and need to be defended. This shit, though? No. Teacher Unions too often fall into the same category as Fraternal Orders of Police and the Roman Catholic Church, choosing to make excuses for their members monstrous behavior and creating systems which, in the name of fairness to the people these organizations represent, deny justice and safety to the people their members purport to serve.

    2. Look, as a general rule, I support any union over any management, not because teachers are sainted heroes, but because I strongly believe that workers need to control their working conditions. But this is not “in general.” This is a specific situation. And in the specific situation of a union shielding members who abuse children, the union is doing something despicable.

       1. +1

15. Isn’t an underaged person by definition unable to consent? This would make her unable to be “herself responsible for the acts and damages.” Case closed.

    1. That’s probably why it wasn’t argued in court.

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