[Cboldt]

-- the girl cannot expressly or impliedly assume the risk of staturory rape. A minor cannot legally consent to sex, just like a minor cannot expressly consent to assuming the risk. --

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.

Children as young as 7 can assume the risk of their dangerous behavior

I'm also not defending the school, and I see there are cases where schools lost/settled on facts less egregious than presented here. negligent security: when is crime your problem?

In Jane C. v. New York City Board of Education, Queens County, New York Supreme Court, 2009, the plaintiff was a minor who was sexually assaulted. The plaintiff was a 16 year-old student who was sexually assaulted by three 18 year-old students in one of the school's restrooms. The plaintiff argued that the school's policy specified that seven guards would be stationed throughout the school to prevent after hours re-entry into the school of any students who did not have to attend an after school program, and that none of the assailants attended an after school program, but that they were able to enter the school after hours because the guards were all in a meeting. The plaintiff's counsel also argued that several janitors saw the assailants, but that they were not asked to leave. One of the assailants had a history of sexual violence against students and teachers, and that the school had received evaluations that indicated that the other two assailants were also potentially dangerous. After the first day of trial, the case was settled for $1,650,000.00.

The posture in this case is motion for summary judgment. I figure the case survive the school's motion to dismiss.

[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.