The Grade Blog

Wednesday, Apr 30 2014 08:01 PM

Lawsuit in alleged assault of autistic girl back in court

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BY COURTENAY EDELHART Californian staff writer cedelhart@bakersfield.com

Both sides in a civil lawsuit against the Kern High School District agree that in October of 2009, two autistic teenagers were discovered in an Independence High School bathroom in partial states of undress.

A civil lawsuit that began Monday attempts to sort out whether what occurred in that bathroom was rape or consensual sex. That's difficult to do because both of the students involved have the mental capacity of small children, and neither is able to speak.

The parents of the girl, who was 15 at the time, say she needs years of counseling and speech therapy to cope with ongoing trauma from the alleged assault, and they want the district to pay for it.

KHSD says it isn't convinced there was an assault, and in any case, the girl's severe autism prevents her from comprehending sexual violation to the extent that she'd be traumatized by it years later.

The Bakersfield Californian does not name children who are alleged victims of sexual assault, nor relatives if doing so would make it possible to identify the children.

In the legal complaint filed in 2010, the girl is identified as "Jane Doe."

To build its case, the district on Wednesday showed the jury photos of the girl taken in the years following what it referred to as "the bathroom incident."

The photos showed her with teachers, classmates and family members. Some were shot on campus and on school field trips. Others were captured from the social media account of the girl's birth mother.

In some pictures, the girl appeared happy and smiling. In others, her mouth was upturned in an unnatural grimace.

KHSD lawyer Leonard Herr asked the girl's stepmother again and again to identify the girl in the pictures. Over and over, she said it was her daughter.

"This was taken after the bathroom incident?" he asked each time.

The stepmother said that the school did not have the family's permission to take the photos, and in fact had been specifically asked not to photograph the girl.

The defense objected during cross-examination when family attorney Ralph Wegis tried to indicate that some photos were staged. Kern County Superior Court Judge Lorna Brumfield sustained the objection.

Wegis then tried another approach, asking if the girl was more comfortable around females than males since the alleged attack.

The stepmother teared up when she testified that her daughter had been afraid of males ever since, and had even stopped hugging her own father.

Wegis showed the jury several of the district's photos of the girl surrounded by boys and men despite the family's request that the school keep boys away from her.

"Does she look comfortable?" he asked.

The stepmother's voice broke when she tried to speak. She cleared her voice and tried again. "No," she said.

In the afternoon, special education teacher aide Matthew Hoyt, who discovered the students in the bathroom, took the stand.

Wegis spent more than an hour pointing out contradictions in Hoyt's characterization of the incident in court and comments attributed to him in police reports and internal district communications.

Hoyt insisted on the stand he couldn't be sure if there was physical contact, for instance, and said he had not seen the girl crying. He also said neither student seemed particularly upset, other than being startled.

Yet a 2009 police report says Hoyt told detectives that when he walked in, he saw the 14-year-old boy's groin pressed up against the girl's buttocks, and that upon seeing Hoyt, the boy ran away and the girl sat on a toilet, rocked and cried.

Wegis also asked Hoyt if he had told his supervisor the incident should be reported to the girl's parents because he was concerned about her.

Hoyt testified he'd only "suggested" the parents be notified because that's routine whenever an incident report is prepared.

The children were discovered about 10:30 a.m., and afterward the school allowed them to finish out their regular school day and even attend an after-school program together, not telling the girl's parents what had happened until more than five hours later.

Criminal charges were never filed in the case.

This is the second trial related to the allegations. A mistrial was declared last year after a violation of the judge's ruling that the word "rape" could not be used in front of the jury.

The trial continues Thursday, when additional school employees are scheduled to testify.

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