The Los Angeles Unified School District (LAUSD) didn’t have a problem with attorney W. Keith Wyatt when he successfully defended them in a lawsuit last year by blaming a 14-year-old girl for having sex with a teacher.

It saved the district a lot of money.

But they do have a problem with him now after word of how he won the case received publicity last week and he told public radio station KPCC on Thursday, “She lied to her mother so she could have sex with her teacher. She went to a motel in which she engaged in voluntary consensual sex with her teacher. Why shouldn't she be responsible for that?”

The district fired Wyatt on Friday.

The answer to that rhetorical question is that a minor is generally not deemed responsible to make that decision and cannot legally give consent. “The belief that middle school children can consent to sexual activity is something one would expect to hear from pedophile advocates, not the second-largest school district in the U.S.,” attorney John Manly, who represents plaintiffs in the Miramonte Elementary School abuse case, told the Los Angeles Times.  

The student sued the school district for emotional trauma after her Edison Middle School math teacher, Elkis Hermida, was convicted of molestation for his five-month affair with her and sentenced to three years in prison. The suit claimed the district had been negligent. 

Wyatt made his argument in civil court, where determinations of culpability are different than criminal proceedings. His defense relied on proving that other teachers, school officials and the district didn’t know about the abuse, so they couldn’t be responsible. That responsibility, he argued, rested with the parties involved, including the girl.

While the age of consent in criminal cases is 18, KPCC cited legal experts who said that at least two appellate court rulings in civil cases recognized that arguments could be made that a minor can give consent.

“It doesn’t make sense,” law professor Jennifer Drobac told KPCC. “The same parties, same behavior, same everything, consent is no defense in a criminal trial.  But the same set of facts in a civil prosecution, consent is a complete defense. How is that possible? It's not logical.” Drobac, who teaches at Indiana University’s Robert H. McKinney School of Law, has studied consent laws nationally.  

Another expert on consent laws, law professor Marci Hamilton of the Benjamin N. Cardozo Law School in New York, said, “If this is a correct interpretation of California law, California is in the dark ages and against the great weight of the social science on brain and emotional development.”

Los Angeles County Superior Court Judge Lawrence Cho, who presided over the civil case, allowed LAUSD to introduce the girl’s sexual history as evidence and placed her name on the jury form that lists potential partial responsibility. Both those moves are considered unusual.

In the end, the jury absolved the district of responsibility. The decision is being appealed.

–Ken Broder

To Learn More:  

LAUSD Argued Middle Schooler Can Consent to Sex with Teacher (by Karen Foshay, KPCC)

Los Angeles Schools Drop Lawyer Who Won Suit after Blaming 14-Year-Old for Sex with Teacher (by Brian Melley, Associated Press)

L.A. Unified Fires Attorney Who Argued Student Could Consent to Sex (by Teresa Watanabe, Los Angeles Times)

L.A. Unified Says Girl, 14, Could Consent to Sex with Teacher (by Teresa Watanabe, Los Angeles Times)

When Can a 14-Year-Old Meaningfully Consent to Sex? Never, L.A. Unified. (by Karin Klein, Los Angeles Times)