The Bakersfield Californian Lois Henry column

Aug. 03--There's so much wrong with how a possible sexual assault at a local high school was handled, it's hard to know where to start.

In October 2009, an Independence High School teacher's aide found two autistic teens in a school bathroom naked from the waist down, with the boy pressing against the girl from behind, his hands on her hips. The girl was crying, screaming by some reports.

Practically from the moment the aide whipped open that bathroom door, the bungling began. No one from the school called police. The girl wasn't seen by a nurse or doctor. The kids were kept together in the same classroom and even sent home on the same bus together. The girl's parents weren't called until nearly five hours after the incident.

Unbelievable.

For me, though, the ultimate sputter moment came when I read that the attorney defending the Kern High School District in a lawsuit over the incident claimed that whatever happened in the bathroom (the district denied it was a sexual assault), the girl didn't have the mental capacity to understand it as a sexual assault; therefore she wasn't haunted by it and didn't suffer any lingering emotional harm.

Are you kidding me?

Under that theory you could do pretty much anything to an autistic person and it'd be no harm, no foul, which is, of course, ridiculous. I can kind of see why the attorney, Visalia-based Leonard Herr, went that direction, though.

As soon as the lawsuit was filed back in 2010, the district accepted responsibility for the incident. It admitted right up front that its employees should have done a better job keeping an eye on the kids so they didn't end up in the bathroom together.

All that was left to hash out was the harm suffered by the girl.

Herr had to try to reduce the perceived harm, and thus any judgment against the district. Over the course of the two trials (the first one ended in mistrial in 2013), Herr aggressively pursued the no-harm defense.

"It's like a 3- or 4-year-old running around the house naked," Herr summed up. "They do not perceive it as (sexual)."

His strategy backfired in May when a jury awarded the girl and her family $1.5 million in damages.

About $200,000 of that is specifically for the girl's future therapy as the family has said the incident left her an emotional wreck, causing her speech and other functions to regress. The rest of that verdict was general "pain and suffering," suggesting the jury felt KHSD really blew it on this one. (The Californian doesn't identify victims of sexual assault, or possible sexual assault.)

Now that there's been a verdict, you may think that means this is all water under the bridge. Uh-uh.

Whether or not the district, via its insurance company, decides to appeal, I believe the public is owed an explanation for how this incident and this case were handled.

And not just because of the money, though an appalling amount has been spent to defend this case.

From the moment those kids were found in the bathroom to the jury's verdict, I think this cuts to the heart of how KHSD views disabled children. Does the district value them as much as normal kids? If all you had to go on was this case, your conclusion would have to be no.

The basic timeline alone is outrageous.

About 11:25 a.m. on Oct. 15, 2009, teacher's aide Matthew Hoyt comes back from lunch to teacher Chris Herstam's class and quickly notices one of the students, a boy, is missing. Then he realizes the girl, who'd been instructed to get her lunch and use the restroom, also isn't back. He hears a noise that causes him to rush through the adjoining classroom, Herstam on his heels, to the bathroom. He opens the door and finds the boy and girl as described above. Hoyt yells, the boy runs off and the girl immediately sits on the toilet and begins crying (or whining or rocking or babbling to herself, depending on which of Hoyt's stories you believe).

It's about 11:29 a.m. at this point.

After a bit of discussion, during which time the girl is left on the toilet with her pants down, Hoyt and Herstam decide to report the incident to their supervisor, the head of Independence special ed department, Julie Willis. They head to her office and give her the lowdown. She allegedly tells them it's not a big deal and to file reports. She will claim in testimony they never told her the details of what happened.

Herstam later that day tells fellow special ed teacher Kathy Young about the incident. Young tells her friend Vanessa Chavez, also a special ed teacher. Chavez, rightly, tells Young she must report this to the school's administration, which Young does.

Word gets to Assistant Principal Connie Grumling who, FINALLY, talks to the girls' parents about 4:30 p.m. Still, no one has called the cops, though Grumling did call KHSD police. It was the parents who called the Bakersfield Police Department and took their daughter to the hospital to be examined for rape. Of course, by then, hours had passed and the girl had gone to the bathroom at least a couple of times. No evidence of rape was found.

Let's pause here to reflect: Every single one of those KHSD employees is a mandatory reporter. They had a legal obligation to report this incident to the cops immediately. That's the first call that should be made, according to KHSD's own policies. Cops first, school hierarchy second. Oh, and KHSD's policies also state that KHSD police are not an adequate substitute for city cops. Fail. Fail. Fail.

Both Willis and Chavez declined to comment, referring me to Herr. Herstam didn't return my call and Hoyt's numbers were disconnected.

There shouldn't have to be a law or policy about calling the parents; it's just common sense. Anyone would want to know ASAP if their kid was found with another kid in a bathroom, pants down.

There is absolutely no way the school would have handled it this way if the girl had been a regular kid with the ability to speak and tell her parents what happened. No way.

Inconceivably, though, it gets worse.

The only two people, Young and Chavez, who did the right thing and reported the incident up the chain, were fired.

A meeting of the special ed department was held Oct. 16, 2009, to fill everyone in on what had happened, review protocols and announce that Willis was stepping down as head of the department.

A few days after that, Chavez testified, she was called into a meeting with the vice principal and asked about her and Young's roles in the aftermath of the incident.

Shortly after that, Chavez testified, both women received "non re-elect" letters, meaning after the school year was over they would not be rehired by KHSD.

They knew it was because of the bathroom incident, she testified. They fought the terminations, first going to the principal (who upheld them), then the KHSD board (which also upheld them) and finally the superintendent who overruled the terminations. They were both reinstated in the 2010 school year, but at different schools.

Think about that.

This institution, allegedly, brought its weight to bear not on the gaggle of folks who didn't do the right thing, but on the two people who did.

That's a powerful message. It not only tells employees to toe the line -- or else -- it also very loudly implies that KHSD doesn't take problems as seriously when they involve special-needs kids.

In the weeks and months after the bathroom incident the girl reportedly began sleeping for hours on end, clearly depressed. She became angry and moody where she'd once been energetic and bright, her mother told me. She started soiling her clothes, though she'd previously used the potty regularly. The family was distraught and tried to work with KHSD to get their girl the help she needed.

Instead, they had to fight to make sure that only females worked with her and that she, not the boy, be brought back to her familiar classroom. Eventually, the girl's parents said, they felt they had no choice but to sue.

Once that happened, the issue left KHSD's hands and came under the authority of the district's insurance company, Self-Insured Schools of California (SISC). And that's where attorney Leonard Herr and the "mental capacity" strategy came into the picture.

Herr said he based his conclusions on the findings of two renowned experts on both autism and childhood sexual assault -- Bryna Siegel, a professor of psychiatry at UC San Francisco, and Anthony Urquiza, a pediatric psychologist at UC Davis.

"The experts said that even though (the girl) may have been upset by the incident, it had no long-term effect," Herr told me. He maintained that there was never any evidence she was raped.

"The reason we had to go there was the family wanted millions of dollars for this and I have to see what damages the child really suffered before I can recommend that a public entity spend that kind of money."

Those big-time experts didn't mean much to at least one juror who told me he was much more impressed by Dr. Dean Haddock's testimony. Haddock appeared for the plaintiffs and said trauma for developmentally disabled children, especially those who can't speak, is far more damaging than for other kids. It's much, much harder to process the trauma and work through it for the mentally disabled.

None of the jurors I contacted wanted their names used because of the controversy this case has stirred up.</p>

"They had credentials stacked as high as my roof," the juror told me of Herr's experts. "But they didn't have any 'on the ground' experience. Dr. Haddock has worked with these people. He has real clinical experience."

Aside from that, he and another juror said they were shocked at how KHSD employees handled the incident, saying they couldn't believe police weren't called.

"What got me was, when they (Hoyt and Herstam) noticed the boy was missing, they went running straight to the bathroom where the girl was," the male juror said. "They didn't look anywhere else, not even his bean bag under the desk where he usually went. That told me they knew there was a problem."

Another juror couldn't get past the changing stories.

"That was the most disgusting thing," she said. "How the KHSD employees just blatantly lied, repeatedly. Their job is to protect children and they couldn't tell the truth."

She zeroed in on the testimony of teacher's aide Hoyt but said everyone involved gave her a bad taste.

"If my daughter gets a scratch at school, they're calling me," she said. "That was the main red flag, that no one called the parents until after school was over."

"The main things we discussed were whether something happened and what the harm was," the male juror said.

I think the jurors did their jobs on this case. But I don't think the taint of how the incident was initially handled and then defended will scrub off KHSD anytime soon.

Opinions expressed in this column are those of Lois Henry. Her column runs Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or email [email protected]

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