Justice Dept. sides with 14-year-old girl raped while serving as 'bait' in middle school sting

al.com ^ | 09/17/2014 | Challen Stephens

[caligatrux]

I'd say, "that depends." Obviously, she didn't consent to sex of any sort, nevermind rape. Statutory rape, FWIW, is typically invoked when both parties consent to sex, but the sex is illegal anyway.

Well, when a case goes to trial, anything can happen and bad judges/juries make bad decisions all the time.

My point is that this kid, in this situation, cannot legally assume this risk. She cannot impliedly assume the risk because you cannot impliedly assume the risk of damage to yourself because of someone else's criminal conduct. She cannot expressly assume the risk because she is a minor, she is under duress and/or she may not be mentally capable.

The very public policy and legal reasoning behind the crime of statutory rape necessarily obviates her ability to assume the risk of statutory rape.

Could an argument be made the other way? Of course, and clearly it has been. But as a fundamental matter of law, assumption of the risk is not a valid legal defense here.

[Cboldt]

I was pointing out that the risk wasn't statutory rape (sex where everybody involved consented), it was assault and rape, being in a boys bathroom at his invitation to have sex.

The other point I assert is that defendant isn't barred from the defense of assumption of the risk on account of plaintiff's age.

If she was under duress, the affirmative defense fails, because in order to assume the risk, one has to act voluntarily, of free will. Same goes for mental incapability, maybe she didn't really understand the risk (i.e., she assumed, incorrectly, that a protector would be there, based on the school's implied promise to protect her).

You had originally said that the affirmative defense fails because she is a minor. That is incorrect as a matter of law. You also said the risk was statutory rape, which I say is wrong because statutory rape is a consensual but illegal act. The risk was rape or assault. In a criminal trial against the rapist, the rapist can't use the affirmative defense of assumption of the risk. I also provided a link to a piece that discusses negligence in light of criminal acts, where negligent defendant doesn't get out of liability just because the act committed (by others) was a crime. I blockquoted a case where the crime was a rape, at a school, and the defendant was the school.

[caligatrux]

I was pointing out that the risk wasn't statutory rape (sex where everybody involved consented), it was assault and rape, being in a boys bathroom at his invitation to have sex.

First of all, I disagree that statutory rape is "only" used in cases where everybody agrees to have sex, but I'll get to that later.

The crime I focused on was statutory rape because, on a purely technical level, the girl said "yes". She did not legally consent to the sex, because she cannot legally consent to sex under the law. I am not discounting more serious charges. I think you could also argue that it was assault and rape because of the circumstances. But because there were some outward indicia of agreement to have sex, at the very least, statutory rape is applicable.

The other point I assert is that defendant isn't barred from the defense of assumption of the risk on account of plaintiff's age.

While that may be true generally, it cannot be true with respect to statutory rape, because statutory rape disregards consent.

If she was under duress, the affirmative defense fails, because in order to assume the risk, one has to act voluntarily, of free will. Same goes for mental incapability, maybe she didn't really understand the risk (i.e., she assumed, incorrectly, that a protector would be there, based on the school's implied promise to protect her).

Agreed. I think clearly she was at least under duress. There is a more detailed article at one of the links that describes the actions she took to "stall" the boy while in the bathroom, waiting for the teachers to come rescue her.

You had originally said that the affirmative defense fails because she is a minor. That is incorrect as a matter of law.

The affirmative defense does fail as a matter of law. Statutory rape is not a consensual act. In fact, the entire reason statutory rape exists as a crime is because society deems certain persons as legally incapable of consenting to having sex (i.e., minors, mental incompetants, people under duress).

You are asserting that the criminal charge of statutory rape is only used in cases where the parties "agreed" to have sex, and thereby stating that it is a "consensual" crime. That is wrong on two counts. First, the charge of statutory rape is used in cases where the parties did not "agree" to have sex. I've seen it used specifically in instances where the D.A. wanted to avoid allowing the defense create a he said/she said situation during trial when a minor was involved.

Secondly, and more importantly, a minor cannot legally consent to sex. The crime of statutory rape itself disregards what the minor said or did, and focuses only on the minor's age vitiating the ability to give consent.

While a minor may be able to assume the risk in certain situations, it is legally impossible for a minor to consent to statutory rape. No one can consent to statutory rape, that's the whole point.

I blockquoted a case where...

What point of law do you think that block quote establishes? You are quoting the arguments of the parties involved, not the findings of the trier of fact. Then the parties settled out of court. You did not quote a court ruling or holding. That was meaningless.

[Cboldt]

So, we'd have to look at the definition of statutory rape in the state in question, but typically there are age difference exceptions, e.g., two 16 year olds having sex isn't statutory rape, but a 20 year old and 17 year old is.

-- What point of law do you think that block quote establishes? --

I took it as a conclusion the case proceeded to trial. This case is at the pretrial stage, although reading one of the links, the only claims tossed were based on federal law, and there is no federal law of negligence.

Quick remark on statutory rape being used to prosecute actual rapists - it's a sorry (but inevitable) state of affairs, when the sex wasn't consensual, to have to settle for statutory rape.

Off to check state law on statutory rape for the jurisdiction in question ...

[Cboldt]

Statutory Rape: A Guide to State Laws and Reporting Requirements

An individual is deemed incapable of consent if he or she is less than 16 years of age, with the following exceptions:

• Sexual intercourse with a victim who is greater than 12 years of age and less than 16 years of age is not considered rape if the defendant is less than 2 years older than the victim.
• Sexual contact with a victim who is greater than 12 years of age and less than 16 years of age is legal as long as the defendant is less than 19 years of age.

Children under 12 years of age are unable to consent to a sexual act regardless of the age of the defendant (although the act is only considered rape in cases where the defendant is at least 16 years of age).

It appears this can't fit under Alabama's statutory rape umbrella, she being 14 and he being 16.

[cherry]

there is so much evil in this world...evil of the so called teachers to have such a lack of common wisdom and decency....

I suspect they had a purulent interest in the assualt....

and just HOW MANY TIMES does a yute need to assualt and attack people before they are jailed?

[cherry]

there is so much evil in this world...evil of the so called teachers to have such a lack of common wisdom and decency....

I suspect they had a purulent interest in the assualt....

and just HOW MANY TIMES does a yute need to assualt and attack people before they are jailed?

[cherry]

one hopes you never suffer anal tearing during a nonrape, rape.

[Cboldt]

Me: I was pointing out that the risk wasn't statutory rape (sex where everybody involved consented)

-- First of all, I disagree that statutory rape is "only" used in cases where everybody agrees to have sex ... --

I suppose we could argue that we have some difference of opinion, but we probably don't have a difference of opinion. My point was that the victim, in this case, (assuming arguendo an "assumption of the risk" defense can be raised) wasn't exposing herself to a risk of "statutory rape," rather to a risk of real rape, rape rape.

In expressing my opinion about the risk the girl was exposed to, what she thought might happen but was trying to avoid, there isn't a question or issue about whether prosecutors ever charge statutory rape for practical reasons. That is, I wasn't taking a view or expressing an opinion of when the charge of statutory rape is used by a prosecutor; which represents a risk to the boy.

I do see that statutory rape necessarily involves absence of consent, but the absence is deemed to exist, regardless of facts on the ground. This might be used to undermine my remark about statutory rape being "sex where everybody involved consented." Hopefully the casual and even careful reader will understand I was talking about facts on the ground consent, not statutorily deemed consent.

[Hot Tabasco]

(The boy) told (the girl) to go to the sixth grade boys' bathroom and she complied.

yea, I know it's perverted and sarcastic but my legal argument is that it was consentual........

And it's sick too!!!!!

[a fool in paradise]

I certainly wouldn’t consent to it just to try to bait a rapist into raping me. No matter who tells me it’s “ok”.

[Popman]

——why was he in a regular school and not a reform school.-——

Wait’ .....reform schools still exist...?

[Vigilanteman]

They call them “alternative schools” to take away the stigma now, but same thing.

[Responsibility2nd]

Update

 

14-year-old girl used as 'bait' in school rape case: What witnesses say happened, in their words

HUNTSVILLE, Alabama -- It's hard to believe. A teaching aide sends a 14-year-old girl to meet a boy for sex in a school bathroom. It's a sting to set up the boy. But the boy switches the location, the staff loses sight of the girl, teachers arrive too late. 

The U.S. Department of Justice sided with the girl's attorneys last month, bringing attention to the details in the four-year-old case. Those details sparked petitions and outraged community meetings in Madison County. But the story traveled much further, appearing on CNN and Fox News, in the London Telegraph and the New York Daily News, reaching as far as India Today and The Australian.

Members of Madison County school board have said the story has not been told correctly, that there has been much "misinformation." For example -- "No administrator played any role in this at all," said one attorney for the district.

Law enforcement later explained why they declined to press charges. Another school board attorney told parents: "There are two sides to every lawsuit and most of what you have heard and read about this has presented only one side."

"What's the misinformation?" asked a parent.

"Part of the misinformation is that the student was unsupervised," asserted the attorney. "He was not. He was supervised at all times."

But the girl's attorneys say the board attorneys are the ones omitting parts of the story in regard to the role of school officials. "This is the exact same behavior we have seen all along from the Board: from the day of the rape, until the time they shredded the boy's records, until they appealed..." reads part of their lengthy statement last week.

So here is the story in the words of those who witnessed the events at Sparkman Middle School, just outside Huntsville, on Jan. 22, 2010.

The following is compiled from depositions taken in 2012, from statements written and signed that afternoon in 2010, from emails and from affidavits. 

The start

June Simpson, physical education aide, affidavit on June 7, 2012:

Prior to January 22, 2010, there had been ongoing allegations that a male student, (the boy), had been repeatedly propositioning other female students to have sex in the boy's bathroom. The allegations started sometime after the Thanksgiving break in 2009, and I was made aware of it after the Christmas break. 

Ronnie Blair, principal, deposition in June 2012:

Q. Did you ever tell one of the teachers or assistant teachers that two students had to be caught in the act for there to be disciplinary action against one or both of them?

A. I don't recall if I've said that or not, but possibly I did simply because it's true, that they're going to have to be caught or they're going to have to admit it themselves. You've got to have evidence, obviously, to discipline someone.

 

 

More. Much more...

[PapaBear3625]

Did she consent to enter the bathroom? Did she agree in the hallway to engage?

She agreed (under duress) to act as bait. This does NOT constitute consent to be sodomized, as THE essential part of the plan that she agreed to, was that school personnel would intervene before any actual sexual act could occur.

At NO point did she agree to being sodomized by the boy.

[caligatrux]

Utterly disgusting.

There are so many things wrong with that whole situation, its just a complete travesty and an utter tragedy.

And even after allowing a 14yo girl to be anally raped, the principal of the school said in a deposition that they hadn't made any changes in the way they handle sexual harassment issues:

Q. Any changes in the way you investigate a sexual harassment complaint?

A. Based on the way that one unfolded, I -- we did as good a job I think as you could do under the circumstances and no, I can't think of anything we've changed.