The Grade Blog

Wednesday, Apr 03 2013 07:29 PM

Trial begins in case of autistic girl allegedly assaulted at school

BY COURTENAY EDELHART Californian staff writer cedelhart@bakersfield.com

One of the few undisputed assertions in a Bakersfield family's lawsuit against the Kern High School District is that four years ago, an autistic girl was found naked from the waist down in an Independence High School bathroom with a fellow special education student, also partly undressed.

Whether what transpired before that was sexual assault or something else, and whether that encounter has caused the girl lifelong psychological damage, were issues to be sorted out in the jury trial that began Wednesday before Kern County Superior Court Judge Lorna Brumfield.

"Whatever happened in that bathroom between these two students, the school accepts responsibility for it if it caused any harm, but the amount of harm and the money requested to deal with that harm is not in any way supported by the evidence," KHSD defense attorney Leonard Herr said in his opening statement.

The Bakersfield Californian generally does not name alleged victims of sexual assault, particularly if they are minors. In the legal complaint, the now 18-year-old girl is identified as "Jane Doe."

The district is arguing that because the girl's disability prevents her from fully comprehending the concept of sexual violation, there is a limit to how much she understands or even remembers about the incident, and in any case, there is no evidence of penetration. A medical exam conducted eight hours after the incident found no evidence of semen.

Family attorney Ralph Wegis pointed out that the lateness of the exam limited how much evidence could be recovered, and noted that some unspecified bodily fluid had been found in a place it wouldn't ordinarily be, which he said was "not normal."

That comment was among several that caused Herr to object and later unsuccessfully move for a mistrial.

In pre-trial hearings, the judge had disallowed any implication that the exam had uncovered evidence of rape because there is, at this point, no expert testimony to that effect. A nurse who examined the girl is among the witnesses scheduled to testify this week, but she is not a "designated expert" on rape, and the Kern County District Attorney's Office never filed any criminal charges.

The girl's parents filed a civil lawsuit against KHSD in 2010 alleging Independence didn't immediately notify them that their daughter had been assaulted, didn't get her medical attention and didn't talk to the Bakersfield Police Department until after the parents notified authorities.

The girl was a 15-year-old 10th-grader at the time of the Oct. 15, 2009, incident, but both she and the then 14-year-old autistic boy who allegedly attacked her are essentially non-verbal and have the intellectual capacity of preschoolers.

The girl had gone to a bathroom shared by two special education classrooms about 11:29 a.m. that day when a teacher's aide heard noises and discovered them.

The school allowed both students to finish out their regular school day together and even put them on a bus together to go to an after-school program, Wegis said. The parents learned of the incident in a 4:09 p.m. phone call to the house.

The school denied the parents the opportunity to comfort their daughter and get her medical treatment and counseling in the immediate aftermath, Wegis said.

"The institution she trusted for her safety communicated to her that what happened was alright," he said.

In fact, the parents had indications even before the school phoned home that something had happened.

A girl who normally looked forward to riding in the car, who would smile, roll down the window and let her hand cut the wind, wasn't happy when her father picked her up from the after-school program, Wegis said. She appeared frightened and withdrawn, and had bundled herself up on a warm day.

Since that day, Wegis said, the girl has regressed in her development. The family pulled her out of school and the after-school program for three months because they couldn't obtain assurances that the girl wouldn't have to see the boy involved in the incident.

What little verbal ability she had has diminished, she has lost control of her bodily functions, and she has stopped hugging people and won't let anyone hug her, Wegis said.

She also spontaneously cries for no apparent reason, at times so violently that she has to be removed from the classroom because she's disruptive, he said.

Wegis said sexual assault has more impact on autistic children than on other children, and the damage can be lifelong.

The family is seeking unspecified damages and money to pay for psychological counseling and speech therapy to help the girl communicate her feelings.

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