School District Sued for Failing to Prevent Employee's Sexual Misconduct Toward Student May Not Raise Student's Comparative Fault or Consent As a Defense, And Cannot Introduce Evidence of Minor's Sexual History

In S.M. v. Los Angeles Unified School District, published September 16, 2015, the Second District Court of Appeal, Division 5 reversed a defense verdict in a lawsuit against the defendant district arising out of a district teacher's sexual misconduct toward a middle school student.  

The appellate court held that the trial court erred in giving a comparative fault instruction.  The court held that comparative fault has no application in a case involving the sexual abuse of a minor student by an adult teacher in a position of authority in a public school setting. The district based the comparative fault defense on the student's consent to the relationship The student's lack of mature judgment in cooperating with her abuser, the court held, was a source of the district's responsibility to her, not a partial excuse from that responsibility.

The appellate court also ruled that the trial court erred in instructing the jury that the minor could consent to the relationship.  The issue of consent, the court ruled, has no place when the minor is the victim of a crime.

The appellate court further ruled that the trial court improperly admitted evidence of the minor's sexual history on the question of the extent of harm.  Under Evidence Code section 1106, the sexual history was not admissible.

The appellate court also held that the trial court improperly instructed the jury that the standard of liability for the district's supervisory and administrative personnel's alleged negligent hiring, supervision, and retention of the teacher included whether they knew or should have known of the teacher's "propensity" for sexual abuse of minors.  Because "propensity" implies a requirement that the employee have a history of sexual abuse, the proper standard is actual or constructive knowledge of the employee's potential for sexual abuse of minors.

The court noted that recent legislation (Civil Code section 1780.5.5, and Evidence Code section 1106, as amended) confirms that defendants cannot raise a minor's consent as a defense in a lawsuit arising out of a minor's sexual relationship with an adult in a position of authority over a minor, which would include a teacher.