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LAUSD Drops Lawyer For Arguing Girl, 14, Was Mature Enough To Consent To Sex With Teacher

LOS ANGELES ( — The Los Angeles Unified School District cut ties with an attorney on Friday after he successfully defended the district from a sexual abuse lawsuit in which he told jurors that a 14-year-old girl was partly responsible for having sex with her middle school math teacher.

"Why is it her fault that she planned on having sex with her teacher? That she lied to her mother so she could have an opportunity to have sex with her teacher," attorney W. Keith Wyatt said in a radio interview with KPCC. "That 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 jury ultimately found in favor of the LAUSD, accepting the district's argument that it had no knowledge of the relationship and could not be held liable, according to KPCC.

The trial victory spared the cash-strapped district a potentially pricey verdict, but news of the trial strategy and remarks by attorney W. Keith Wyatt that crossing the street was more dangerous than deciding to have sex with a teacher drew criticism.

"Mr. Wyatt's comments yesterday were completely inappropriate, and they undermine the spirit of the environment we strive to offer our students every day," Dave Holmquist, general counsel for the school district, said in a statement. "Our deepest apologies go out to the young woman and her family, who were hurt by the insensitive remarks of Mr. Wyatt."

Elkis Hermida, a teacher at Thomas Edison Middle School, was convicted of lewd acts against a child and sentenced in July 2011 to three years in state prison.

The student then filed the case to seek financial compensation from the LAUSD stating she suffered emotional trauma from the months-long relationship with Hermida, according to KPCC.

During the trial, Wyatt introduced the girl's sexual history and argued she bore some of the responsibility.

The judge ruled in favor of the district.

KPCC reports the girl's lawyer is appealing the case.

CBS2/KCAL9's Kara Finnstrom spoke to parents outside the middle school on Friday.

"He's an adult. She didn't know better," parent Mary Eureta said.

The case presents an apparent inconsistency in the standard for sexual consent in California criminal and civil cases.

In criminal cases, a 14-year-old girl is too young to consent to sex. Wyatt, however, cited a federal court decision that said a minor could consent to sex in some circumstances.

The federal case cited by Wyatt relies on a California Supreme Court decision about jury instructions in an incest case, said Mary Fan, a law professor at the University of Washington. The creative application of the language was probably never envisioned by the state's high court.

"Some language plucked out of the original case has grown to monstrous proportions," Fan said. "Pretty soon it looks like a viable argument. When a court accepts it, it just grows into its own beast."

Lawyers and advocates for sexual abuse victims said the legal tactic was surprising.

Attorney Holly Boyer, who filed the appeal for the girl, spoke to Finnstrom Friday via phone.

"The teacher is a person in an authority position who is grooming a child for several months, establishing a relationship with this child, and then abusing this child," Boyer said. "For the District to then argue that the child was somehow, should be responsible for her injuries is shocking.

"I was shocked. I've done sexual abuse cases against school districts before and I've never seen the persistence of this argument. I've never seen this at all that the victim willingly participated in this and that they should bear some responsibility in their injuries."

Boyer said there were enough red flags that the school should have been aware of the teacher's conduct.

He was seen hugging other girls and began to groom the victim at age 13 through texting, phone calls and exchanging photos, Boyer said, adding that the sexual abuse began when the girl was 14 and some of it occurred in the classroom.

Boyer also plans to argue that the girl's sexual past should not have been allowed into evidence. Such evidence is barred in criminal cases where rape shield laws exist, but not always in civil actions.

"It's terrible, but not unusual that a school would try to muddy the waters" by presenting such evidence, said Fatima Goss Graves, a vice president at the National Women's Law Center. "The law on whether and when that sort of evidence is permitted is sort of murky and one of the reasons why Congress is looking at additional law ... that looks more like a criminal rape shield law."

(TM and © Copyright 2014 CBS Local Media, a division of CBS Radio Inc. and its relevant subsidiaries. CBS RADIO and EYE Logo TM and Copyright 2010 CBS Broadcasting Inc. Used under license. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

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