October 27, 2017

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 third-graders 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.

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Florida law allows the defense to be used against people 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.

The full article can be viewed here.