Criminal Law Says Minors Can't Consent — But Some Civil Courts Disagree | KUOW News and Information

Criminal Law Says Minors Can't Consent — But Some Civil Courts Disagree

Nov 16, 2014
Originally published on November 16, 2014 6:00 pm

Protecting young people from sexual predators would seem to be a universally-held value in this country: No state has an age of consent lower than 16.

But in some courtrooms, attorneys argue that children can make decisions about whom they have sex with — and in some cases, those attorneys are winning.

One of those cases is currently under appeal in California. In 2010, a 28-year old middle-school math teacher began a six-month sexual relationship with a 14-year-old female student at his school.

The teacher was convicted in criminal court of lewd acts with a child, and he went to prison. The girl's family then sued the LA Unified School District in a civil case.

Investigative reporter Karen Foshay pored over court documents and looked at the school district's line of defense. This past week, she broke the story for NPR member station KPCC. Foshay tells NPR's Arun Rath that she was amazed by how the school district defended itself in court.

"They said, 'We're not negligent here, we didn't know about this,'" Foshay says. And they also said that the 14-year-old girl was at fault because she consented to the sex.

Attorney Keith Wyatt, who was representing LA Unified in the case, made that argument in court — and reiterated it in an interview with Foshay.

"She lied to her mother so she could have an opportunity to have sex with her teacher ... she went to a motel in which she engaged in voluntary consensual sex with her teacher," Wyatt said to Foshay. "Why shouldn't she be responsible for that?"

Under criminal law in California, the age of consent is 18 years old. But in a civil case, Foshay says, there have been two rulings that say minors can consent to sex.

"So you can be a victim in the criminal case, but you can actually be found at fault in the civil case," she says.

When Foshay asked Wyatt whether a 14-year-old has the maturity to make a decision about sex, he said children "make decisions all the time."

"Making the decision whether or not to cross the street when traffic is coming, that takes a certain level of maturity," he said. "And that's a much more dangerous decision than deciding, 'Hey, I want to have sex with my teacher.' "

Wyatt was able to successfully argue that LA Unified had no negligence in this case. As Foshay reported for KPCC, the judge gave the jury the opportunity to find the girl at fault. Instead, however, the jury accepted the school district's argument that it had no knowledge of the situation.

The decision in that civil case is currently under appeal.

Wyatt has since issued an apology for what he called his "insensitive" comments, and LA Unified announced they're removing him from other legal matters before the school district because of his comments to Foshay. The district's statement read, in part: "Respect and empathy must be at the core of how we approach these cases, and Mr. Wyatt's remarks did not reflect that commitment."

But LA Unified told KPCC that Wyatt's firm, Ivie, McNeill and Wyatt, will continue to represent the school district in 18 lawsuits.

Jennifer Drobac, who teaches juvenile law and sexual harassment law at Indiana University, says what's happened in California isn't unique.

"There are 12 other states, and perhaps more, where I've documented that civil law is diverting from the criminal law treatment of adolescent and juvenile consent," Drobac says.

This means that in a civil and criminal case with the same facts and same people involved, the same consent will be treated with diametrically opposite results under the law. Drobac says that's the situation in states including New York, Illinois, Maryland and Louisiana.

Drobac says that in California, this disparity between civil and criminal consent came about when the state legislature changed the law and took sex with a minor out of the forcible rape statute. The intent was to establish separate penalties for the two crimes.

"But what happened was ... the California Supreme Court interpret that as the legislature saying, 'Well, juveniles may be able to consent in certain circumstances,' " she says.

"There's no basement on this," Drobac says. "You could take a 9-year-old and say that a 9-year-old could consent, under this reading of the change of law in California."

Drobac says the chances of these disparities being settled at the federal level are low, since the federal government has a hard time intervening in state criminal law unless there are national implications. Because of that, she says, these changes need to be made on a state-by-state basis.

"But I think it's possible for state lawmakers to look at this issue, because I think it's an important one," she says. "Legislators have the ability to look at their laws to see if they're consistent and, at the very least, make the age of consent rational."

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

ARUN RATH, HOST:

Our first story today deals with young people and sexual predators. If there are any young people you'd like to shield from this report, come back to us in about six minutes. Now, protecting young people from sexual predators would be seem to be a universally held value in this country. No state has an age of consent lower than 16. But in some courtrooms, attorneys argue that children can make decisions about who they have sex with, and in some cases, those attorneys are winning. We begin with a case here in California.

In 2010, a 28-year-old middle school math teacher began a six-month sexual relationship with a 14-year-old female student at his school. The teacher was convicted in criminal court of lewd acts with a child, and he went to prison. The girl's family then sued the LA Unified School District in a civil case. Investigative reporter Karen Foshay poured over court documents and looked at the school district's line of defense. This past week, she broke the story for member station KPCC. Foshay was amazed at how the school strict defended itself in court.

KAREN FOSHAY: Number one - they said, we're not negligent here. We didn't know about this. There's no proof that we knew this was happening. Number two - you consented to this. You voluntarily had sex with your teacher.

RATH: And you talked with Keith Wyatt. He was a lawyer representing LA Unified School District.

FOSHAY: You know, I did. He was the trial attorney in the case. And what I found very interesting is he over and over, in the trial, said, she was at fault for this. Here's a little bit about what he said about that to me.

(SOUNDBITE OF ARCHIVED RECORDING)

KEITH WYATT: Why is it her fault that she planned on having sex with her teacher, that she lied so she could have an opportunity to have sex with her teacher, that she went to a motel in which she engaged in voluntary consensual sex with her teacher? Why shouldn't she be responsible for that?

RATH: When people hear this tape - parent or not parent - your jaw just drops. It's kind of amazing. Now, my understanding was always that if you're below the age of consent, you can't consent.

FOSHAY: You know, you're right. In California, under criminal law, you have to be 18 to consent. That's the age of consent. But the civil law in California seems to back up Mr. Wyatt. There've been two rulings in California that say, wait a minute - on the civil side, minors can consent. So you can be a victim in the criminal case, but you can actually be found at fault in the civil case.

RATH: So how was the school district's trial attorney able to convince the jury?

FOSHAY: Well, one of the things I had a question for Mr. Wyatt was does a 13-year-old or 14-year-old have the maturity to actually make this decision? And he said, absolutely. And here's what he said about that.

(SOUNDBITE OF ARCHIVED RECORDING)

WYATT: Children make decisions all the time. All right? Making the decision of whether or not to cross the street when traffic is coming - that takes a certain level of maturity. All right? And that's a much more dangerous decision than deciding, hey, I want to have sex with my teacher.

FOSHAY: Again, talking about a child. He was able to successfully argue that LA Unified had no negligence in this case, no knowledge of the situation.

RATH: Karen Foshay is an investigative reporter with KPCC here in Los Angeles. Karen, thanks so much.

FOSHAY: Thank you.

RATH: The decision in that civil case, by the way, is currently under appeal. Attorney Keith Wyatt has since issued an apology for what he called his insensitive comments. And LA Unified announced they're removing Wyatt from other legal matters before the school district because of his comments to Karen Foshay. Their statement read, in part, respect and empathy must be at the core of how we approach these cases, and Mr. Wyatt's remarks did not reflect that commitment. But LA Unified told KPCC that Wyatt's firm, Ivie, McNeill, and Wyatt, will continue to represent the school district in 18 lawsuits.

RATH: Jennifer Drobac teaches juvenile law and sexual harassment law at Indiana University. She says, what happened in California isn't unique.

JENNIFER DROBAC: There are 12 other states and perhaps more where I've documented that civil law is diverting from the criminal law treatment of adolescent and juvenile consent - such that you get the same facts, name actors and same consent will be treated with diametrically opposite results under the law. New York has a similar problem, out of a 1933 case which said that a young woman who was riding a bus who consented to sex could not sue because she had consented.

RATH: How old was she?

DROBAC: She was either 15 or 16. But you see cases like this arising in Illinois, Maryland, Louisiana. Louisiana has a case where a 13-year-old mentally challenged student was found comparatively negligent in a case. And, you know, that kind of situation is just mind-boggling. It's shocking. That is truly a blame the victim.

RATH: Wow. Why is there, in the first place, this disparity between the age of consent when it comes to criminal law and a difference when it comes to civil law?

DROBAC: Well, it all got started with the California legislature in 1970. And what they did was they thought that the penalty should be different for people who engage in forcible rape versus those who have sex with juveniles where there is arguably some acquiescence. But when a child consents, we understand that in most circumstances, a child does not have what we call legal capacity, therefore no legal consent happens.

But what's happened was is that when the California legislature changed the law and took sex with a minor out of the forcible rape statute, the California Supreme Court interpreted that as legislators saying, well, juveniles may be able to consent in certain circumstances. And there's no basement on this. You could take a nine-year-old and say that a nine -year-old could consent under this reading of the change of law in California.

RATH: Is this something that needs to be settled at the federal level? Could it be?

DROBAC: Well, criminal law tends to be state-driven law. And the federal government has a hard time intervening unless there are national implications. So it has to be on a state-by-state basis. But I think it's possible for state lawmakers to look at this issue 'cause I think it's an important one. Legislators have the ability to look at their laws to see if they are consistent and, at the very least, make the age of consent rational.

RATH: Jennifer Drobac teaches at Indiana University's McKinney School of Law. Professor Drobac, it's hard to get your head around this stuff. Thank you so much for talking this through with us.

DROBAC: I'm happy to do so any time. Transcript provided by NPR, Copyright NPR.