Other states don’t let schools blame kids for sexual abuse

Unlike Florida, many states do not allow school districts to blame children for their own sexual abuse — a tactic used widely by schools here when they are sued.

Courts in at least eight states have barred a legal defense that puts the blame partly or entirely on abuse victims.

Those states — California, Colorado, Minnesota, Oregon, Pennsylvania, South Carolina, Washington and Utah — all say that children are not mature enough to consent to sexual behavior, so they can’t be blamed when they’re victimized.

Florida courts have never ruled on the question. So school districts in Broward, Palm Beach and Miami-Dade counties all have pointed the finger at children — some as young as 6 — who were abused.

In one case, the Palm Beach County School District claimed in court files that four thirdgraders were “careless and negligent” and old enough to know better when a teacher molested

them in 2005.

Two of the victims, now adults, said they felt ashamed and afraid after the schools blamed them. They said school districts that blame the victim deter others from coming forward if abuse occurs.

The state of Washington would not allow it. The Washington Supreme Court ruled in 2005 that a 13-year-old girl “lacks the capacity to consent and is under no legal duty to protect herself from sexual abuse.”

In 2007, a Minnesota appeals court ruled, “We find it difficult to conclude that children could meaningfully assume the risks of sexual assault.”

And in 2015, a California appellate court ruled that “there is no case or statutory authority or persuasive reasoning supporting the notion that students sexually victimized by their teachers can be contributorily responsible for the harm they suffer.”

Florida, in contrast, allows victims to be blamed under a defense known as “comparative negligence,” which aims to split responsibility between the victim and the party accused of negligence — or to blame the victim entirely. School districts in South Florida have used the strategy in an attempt to reduce how much they have to pay the victims.

Florida law allows the defense to be used against those as young as 6, although the law does not specify whether it’s allowed in sexual abuse cases.

Some lawyers and victims advocates argue that children can’t legally be blamed because Florida criminal law presumes that anyone under age 16 is too young to consent to sex. They must be 18 to consent with someone over 23.

“We either mean it or we don’t when we say a child under 16 can’t consent,” said Palm Beach Gardens lawyer Michael Dolce, a critic of the defense. “You can’t have it one way in civil court and another way in criminal court.”

Dolce researched the defense in connection with a case he was handling. He said he couldn’t find any states where appellate judges have allowed defendants to blame sexual abuse victims. In Florida, he couldn’t find any appellate ruling one way or the other, he said.

His research involved a lawsuit he filed against the Florida Sheriff’s Youth Ranches, which operates a group home in Polk County. Dolce represented a 13-year-old girl who was sexually assaulted by an 18-year-old woman at the group home. Youth Ranches claimed the 13-year-old was “comparatively negligent.”

Dolce filed a brief opposing the use of the defense, arguing that a 13-year-old can’t consent to sex. The trial court judge ruled against him without explanation. The case ended up being settled, so Dolce never asked an appeals court to address the issue.

Some victims’ lawyers say it can work to their advantage when the victim is blamed.

“As the plaintiff, it’s helpful if the defendant makes the arguments to a jury,” said lawyer Marc Wites, who represented the students abused in Palm Beach County. “Not only is the jury likely to reject it, but they’ll probably become angry, and it ruins the credibility of the defendant.”

It’s unlikely a jury in Florida has ever heard this defense in a child sex abuse case because those lawsuits are usually settled or dismissed before they make it to trial, legal experts say.

But the defense has been used regularly as an early response to a lawsuit. The South Florida Sun Sentinel identified 13 cases in South Florida. Palm Beach County schools made the claim against children as young as 6.

The practice should be outlawed, said Jennifer Dritt, executive director of the Florida Council Against Sexual Violence.

“It’s damaging to children to use this defense,” she said. “How is a 6-year-old in any way to blame for sexual assault? It’s absurd.”

Dale Friedman, a lawyer who has used this defense in Palm Beach County school cases, said the purpose is not to assign blame but to reduce damages when children don’t get psychological help or fail to quickly report an incident.

A lawyer who fails to raise it can be sued for malpractice, said Friedman, who works for the Conroy Simberg law firm in Hollywood.

“It’s one of those affirmative defenses you’ve got to raise in case the facts support it,” she said.

Other lawyers question whether the defense could be used for anything other than victim blaming. They say the tactic refers to the actual incident, not what happens afterward.

Unless a school district is more specific in why it’s using the negligence defense, “one has to presume they are alleging that the minor plaintiff is responsible at least in some degree for the sexual assault against him or her,” said Mitchell Frank, a professor at Barry University’s law school in Orlando.

After the Sun Sentinel uncovered the widespread practice of blaming victims, the Palm Beach County School Board agreed not to use it again in child sex abuse cases. The general counsel for the Broward County School Board said she plans to let a firm that handles liability claims know she also doesn’t want it used.

The Miami-Dade County School District denied actually using it, despite it showing up in multiple lawsuits.