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Nov 06 2012

It’s looking like a global war on kids

Kristen Cunnane was raped and sexually abused by two teachers at her middle school in Northern California. This is not in question: one of the teachers was convicted and sentenced to 8 years in prison, while the other committed suicide as the accusations piled up. As an adult, she recently sued the school district for damages. She lost her case, for an interesting reason. The court found her responsible for her own rape.

Defendants allege that Plaintiff was herself careless and negligent in and about the matters alleged in the complaint, and that said carelessness and negligence on said Plaintiff’s part proximately contributed to the happenings of the incident and to the injuries, loss and damages complained of, if any there were . . . .

[Alternatively, d]efendants allege that Plaintiff was herself responsible for the acts and damages of which she claims herein, and by reason thereof is estopped from obtaining any damages as result thereof.

Hear that, teenagers? You can be raped by an adult and it’ll be your fault.

67 comments

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  1. 1
    Nepenthe

    According to the article, the case hasn’t been decided yet. This is just the–hurk–line of argument put forth by the district. I hope each and every one of the district’s lawyers has a daughter to whom they have to explain this.

    Actually… never mind on the daughter idea.

  2. 2
    shadowspade

    Just when I start to have faith in humanity…

    they pull me back down.

  3. 3
    Akira MacKenzie

    shadowspade @ 2

    That is why “faith” should never be considered a virtue. Accept the fact that most human beings (especially Americans) are greedy, hateful, ignorant, violent scum and you won’t be disappointed when this sort of shit comes up. ;)

  4. 4
    shouldbeworking

    She should have gone to a school district run by sane adults. Every student in the school should leave.

  5. 5
    Dick the Damned

    It’s repulsive, but it seems to be part of lawyerthink. If a cyclist, who is not at fault in an accident, is injured by a driver, & if the cyclist isn’t wearing a helmet, they are considered to have engaged in risky behaviour, & therefore are less deserving of damages.

  6. 6
    joed

    I wonder if the District’s arguments are standard for child abuse by authorities/teachers etc.
    The arguments sound a bit desperate.
    Seems Moraga School District Superintendent Bruce Burns feels sorry for Ms. Cunnane but Burns pleads that this could cost a lot of money.
    U S is a very sick society with very sick leaders and people.

  7. 7
    Ichthyic

    This is just the–hurk–line of argument put forth by the district. I hope each and every one of the district’s lawyers has a daughter to whom they have to explain this.

    they make a valid argument, FWIW.

    the district in losing this case would have a tremendous fiscal impact handed to them, which would inevitably end up hurting the students as well.

    gone are the halcyon days when prop 13 hadn’t passed yet and california schools were funded well enough that one, there would have been better teachers and better staff in place to monitor them, and two, they could deal with issues like this without worrying about going bankrupt and thus having to glom on to such a horrid tack in defense.

    should this entire school district go belly up?

    maybe, maybe not. should this court case decide it?

  8. 8
    Winterwind

    If a cyclist, who is not at fault in an accident, is injured by a driver, & if the cyclist isn’t wearing a helmet, they are considered to have engaged in risky behaviour, & therefore are less deserving of damages.

    Would that be true even if the driver, an adult, was trying to run over one of his teenage students? Genuine question.

  9. 9
    Ichthyic

    Would that be true even if the driver, an adult, was trying to run over one of his teenage students? Genuine question.

    if:

    -the cyclist sued the city for mismanagement of driver/cyclist interactions

    and

    -if the cyclist was claiming brain injuries and long term disability as a result

    then

    -a defense lawyer could claim that plaintiffs claims for damages should be mitigated by the fact that they weren’t wearing a helmet.

  10. 10
    Ichthyic

    … IANAL, but this is a civil case, not a criminal case, and AFAIK, mitigation to damages applies here, regardless of whether it seems, or even IS appropriate or not.

    that said, I don’t think this comparing a cyclist without a helmet to a 12 year old being sexually abused really works here.

    what “risky” behavior could a 12 year old, who is not legally responsible, have possibly committed that could mitigate a damage award like not wearing a helmet might for a cyclist claiming damages for head injuries?

  11. 11
    JohnnieCanuck

    The information at the link does not support the allegation that the court has decided against the girl. Please cite the information that led you this conclusion or amend the post to avoid misleading people.

    Sounding off before double checking is a bit like crying wolf. Credibility is hard to regain, once lost.

  12. 12
    lawmom

    Let’s chill for a moment. This is boilerplate language you will find in every answer to every complaint containing allegations of negligence. Maybe it’s a bit lazy, as the author suggests, but if you don’t plead affirmative defenses with the answer, you waive them. It does not mean the district will pursue these defenses. Also, comparative negligence is not a defense to intentional torts, so these affirmative defenses are not applicable to battery and the like. The court made no findings, the girl did not lose her case.

    I promise you, this case will settle. I am 100% certain of this.

  13. 13
    sc_770d159609e0f8deaa72849e3731a29d

    ‘Hear that, teenagers? You can be raped by an adult and it’ll be your fault.’

    It’s not just being a teenager: as in the story below, being of the female persuasion is a contributory [and aggravating] factor. It goes back a long way as an exculpation: ‘The woman did tempt me and I did eat.’

  14. 14
    loopyj

    Teenagers? This girl was TWELVE when these two teachers started abusing her.

  15. 15
    JAL: Snark, Sarcasm & Bitterness

    It’s a year difference and the message is received and felt by all kids, I think regardless.

    Personally, it sounds more like WTF is wrong with the school who makes this defense and doesn’t think it’s wrong. Yeah, I’m not defending the people blaming the victim. I just find that reprehensible. I mean did the school even try to work with her on this? Any statements to her about how terrible it was her life was destroyed by the teachers?

    I can’t blame her for her rapes or trying to get money for her pain, suffering and loss. Her life has been wrecked.

    It may be just the lawyers. It may be just them trying to save their school but they are doing in a down and dirty way that’s not helping any victim anywhere.

    Even if it’s just the lawyers, (which I have my doubts of since blame the victim is pervasive). Even if it bankrupts the school I can’t defend the school and I can’t blame her.

    I just…no, I don’t think I can do that. I mean what kind of feminist am I to let them blame the victim when I fight against that just because of the schools lack of funds? That’s not her fault. That’s California’s fuck up and the norm in this time. The students there are going to suffer because of a terrible system. Blaming the victim doesn’t solve that issue. It just makes it all so, so much worse.

  16. 16
    DLC

    It’s sickening, I don’t care what “legal strategy” excuse you want to stick on it. The school district should pay this young woman damages, cry mea culpa, and vow to do all they can to never let this kind of thing happen again. Instead, they are going dirty early.

  17. 17
    lawmom

    That’s how it works. The defendant’s attorney gets only a couple of weeks to file an answer, less if the defendant sits on it for a while. If the attorney doesn’t assert every conceivable defense, that is malpractice. They aren’t allowed to do any discovery at that point, so they don’t know all the facts yet. So they include the defenses, do some discovery, and later drop the ones that aren’t relevant. No big whoop. I am certain her lawyers didn’t give it a second thought. It’s no different from pleading not guilty in a criminal case and then negotiating a plea deal later. No one is outraged by that.

    We don’t know if the parties are engaged in settlement negotiations. Maybe the district is prepared to offer her seven figures and the plaintiff wants eight, or maybe she didn’t make a demand at all before filing suit. Who knows? In the end, she will get a decent settlement, I am sure of it. This is a high six to low seven figure case.

  18. 18
    Freodin

    That some people can even think to use such a horrid argument in defense of rape shows that they are… well, lawyers. (Insult intented)

    But I have to wonder: on what base does she sue the school district for recompensation?

  19. 19
    Azkyroth Drinked the Grammar Too :)

    Sounding off before double checking is a bit like crying wolf. Credibility is hard to regain, once lost.

    Oh, you mean like a smarmy fly-by-nighter who conceits that the host might have “lost credibility” by slightly misreading an article while tired and distracted and doesn’t bother to check what the total credibility balance is like?

  20. 20
    Giliell, professional cynic -Ilk-

    Saying a kid even could be responsible for her own rape

    No big whoop

    Blaming the victim instead of asserting one’s innocence

    It’s no different from pleading not guilty in a criminal case

    Lawmom?
    Poor kids…

    Talking about disgusting, recently a German court found that a 14 year old did not suffer statuary rape by a stand-in teacher because, since he wasn’t her regular teacher he didn’t have a duty of care or authority over her.*
    The only person who seemed to notice that there was something seriously wrong was the guy himself who resigned as a tenured teacher. Yes, he was not able to keep himself from fucking a 14 year old student and he would have been allowed to go on teaching.
    When I was still in highschool, my economics teacher used to say that as a tenured teacher he wouldn’t lose his job unless he punched his boss or fuck a student. Guess he was wrong then…
    *At least this was widely criticised by many people and organisations.

  21. 21
    SQB

    What I wanted to hope they mean to say, is that by not reporting her rape, she is somehow responsible for it continuing. In other words, they didn’t know about it so they couldn’t stop it.
    I don’t agree with that, but at least I can see where they’re coming from and you could argue about the school should just react, or be (buzzword) pro-active.

    But then I got to the part that read

    [Alternatively, d]efendants allege that Plaintiff was herself responsible for the acts and damages of which she claims herein, and by reason thereof is estopped from obtaining any damages as result thereof.

    and I just gave up.

    I hope they step on a lot of legos.

  22. 22
    =8)-DX

    “Plaintiff was herself careless and negligent in and about the matters alleged in the complaint”.

    Am I going to have to make sure to explicitly tell my daughter not to be careless and negligent while someone is trying to rape her?

    I’d go along with the story that this is just lawyer boilerplate before they knew any details of the case, as @lawmom points out. I guess similar things are required of lawyers out in cases of suing for bodily harm or property damage, the wording and the inappropriatness to the situation are still wrong either way.

  23. 23
    ChasCPeterson

    She lost her case, for an interesting reason. The court found her responsible for her own rape.

    As others have pointed out, this is false.
    And it’s a pattern. I’m no fly-by-nighter and I’ve enjoyed reading Pharyngula for a long time. But PZ does this kind of shit often. He serves up some trending internet meme at face value, doesn’t check facts, and never corrects anything or apologizes whenit’s pointed out that he got it all wrong. His priority is clearly serving up red meat for the Horde as opposed to veracity or credibility.

  24. 24
    seivadthe

    @Ichthyic
    Regarding bicycle helmets. This has been tried a few times in UK courts, and never fully accepted to my knowledge.
    In a saner country like the Netherlands it genraly assumed that when a vehicle hits a bicycle, the vehicle driver is responsible for damages unless they can prove otherwise (and no helmet doesn’t fly).

    Does this actualy happened in the US?

  25. 25
    Giliell, professional cynic -Ilk-

    I’d go along with the story that this is just lawyer boilerplate

    It’s just as disgusting.
    It’s one thing to say “we didn’t know, we did the best we could, we acted correctly given the information that we had”, which I think is valid and depending on the circumstances could even be right. I don’t know the details, but it could well be that they acted correctly given the information and guidelines in place at that time. Were there guidelines about student-teacher interaction? Did they enforce them correctly? Did they know they were violated? I don’t think a school should be meassured according to standards that were set 15 years later.
    But that is not the same as saying that the child was negligent because she was raped.
    One says “we didn’t do anything wrong and shit happens”, the other one says “you did something wrong so don’t come crying to us.”

    +++
    I’m for mandatory bycicle helmet laws. If you expect society to cough up for your medical treatment after a crash*, **, society is allowed to ask you to minimize those damages.

    *public healthcare over here in socialist commie Europe
    **bycicle accidents also happen because the cyclist is the guilty part and without anybody’s interference because, duh, two thin wheels and a permanent need to maintain balance

  26. 26
    Beatrice, an amateur cynic looking for a happy thought

    So… This is actually what lawyers have written as part of the defense. Ok, that’s disgusting. I am not a lawyer or anything, but I sort of thought things like truth and some little basic decency were still allowed (the truth might even be encouraged, but I’m just guessing) in the court of justice. If that word still has any meaning.

    And I see that the bottom of the article says the school district stands behind the lawyers’ words because “this is a significant case that could have serious consequences for our school district. . . . As a result, at this point in the proceedings we have an obligation not to waive any potential legal lines of defense.” Well. That’s disgusting too.

    Googling a bit, I can’t find anything about the verdict, it seems not to have been reached yet. So, PZ seems to have neglected to read the article properly and/or check the facts.

  27. 27
    seivadthe

    “bycicle accidents also happen because the cyclist is the guilty part and without anybody’s interference because, duh, two thin wheels and a permanent need to maintain balance”

    Should knee and elbow pads be mandatory too then?

  28. 28
    Giliell, professional cynic -Ilk-

    Should knee and elbow pads be mandatory too then?

    I haven’t seen any data on whether they would increase road safety, so I’m not going to make a call on that.
    Are you trying to play libertarian ad absurdum or are you honestly interested in my opinion?

  29. 29
    No Light

    Here in Rapetopia the UK (in 2007), a judge gave a man who’d raped a ten year old girl twice a four-month custodial sentence. IIRC there was no minimum tariff on that sentence either.

    So we can all agree that’s appalling, yeah? Well grab something to puke in, because the reason given for this joke sentencing will make you ill. The victim “dressed provocatively”. In other words, “Bitch was asking for it”.

    What’s even more tragic is that this isn’t an isolated case. Gangs have been grooming, and then pimping out, girls aged 11 and up.

    Nothing was done for years because a) the girls were working class (and therefore worthless) and often in local authority care (so entirely disposable) and b) the police didn’t want to be labelled Islamophobic, because the girls are white and. the offenders were Pakistani Muslims.

    If a middle-class fifteen year old from the South goes missing, with the presumption that she’s fled with a teacher that may be having sex with her, international manhunts are engaged and she’s described as innocent, and cruelly manipulated.

    When hundreds of northern girls from deprived backgrounds are being drugged and gang-raped to “break” them, then rented out, all with full knowledge of the police over a period of years, a collective “Meh” is uttered. The girls are described as complicit in their own rape, as being “old enough to know better”.

    The war on women and children is constant and unyielding. Efforts to change things are undermined at every turn. We’re seeing increased publicity here, due to the Jimmy Savile debacle, but that only scratches the surface. The abuse (and cover-up) went higher up that that, and has done for decades.

  30. 30
    seivadthe

    @Giliell
    I’m from the Netherlands (safest place to cycle), but currently have to suffer London’s poorly maintained roads and crap driving (which despite high rates of helmet use, is less safe than the Netherlands).
    I’m honestly interested in your opinion. Coz when you fall off your bike and when you get knocked off your bike, are two very different types of accident.

  31. 31
    Giliell, professional cynic -Ilk-

    seivadthe
    Ok then(sorry, ther have been too many people trying to move goalposts here):
    bicycle helmets are proven to be safe and effective. In all types of accidents, just like seatbelts, which also safe drivers who are 100% responsible for the accident. And yes, a cyclist can cause the accident as the guilty party. Just because they get hurt more doesn’t mean it’s not their fault.
    Injuries come with costs both for society and for individuals. Since society is rightly expected to cough up for that costs, it gets a say in how to prevent those costs and I think that helmets do not infringe so much on personal liberty that society has to waive its interests. After all we enforce such rules with great success in other areas of traffic like seatbelts and motorcycle helmets.
    Knee and ellbow pads so far don’T seem to have any data behind them. From the top of my head there seem to be reasons that contraindicate them like that the straps could get caught in the moving part of the bike and so on, and until we have that data I think it’s futile to dicuss whether this justifies mandatory pad-wearing.
    But all in all that has nothing to do with rape. We all know that accidents happen, even if we do everything right to the best of our ability. Because the road is slippery, because a traffic light was malfunctioning, because we’Re humans and can’t pay 100% of attention 100% of the time. Rape happens because somebody actively decides to violate another’s autonomy and agency. Rape doesn’t happen accidentially and even if “rape prevention” worked, which it doesn’t, it would still not be justified to infringe on the (potential) victim’s liberty by putting the onus on them.

  32. 32
    khms

    No big whoop. I am certain her lawyers didn’t give it a second thought. It’s no different from pleading not guilty in a criminal case and then negotiating a plea deal later. No one is outraged by that.

    Just as an aside, the German supreme court just now has a case where a number of people (independently, AFAIK) ask to declare this unconstitutional. Obviously, some people are outraged by this. (Well, OK, by the plea deal, not by what the lawyers said to begin with. So it’s not quite the same.)

  33. 33
    qwints

    Comments got it in one: defendant’s answer isn’t a court ruling. This is boilerplate language preserving a defense, not evidence or argument.

  34. 34
    slowdjinn

    ChasCPeterson –

    But PZ does this kind of shit often. He serves up some trending internet meme at face value, doesn’t check facts, and never corrects anything or apologizes whenit’s pointed out that he got it all wrong.

    Yes, PZ summarises the facts wrongly fairly often. Given the volume of his output that’s not surprising. But your accusation that he never corrects himself or apologises is patently false, and he always links to his sources in the full knowledge that many of the horde will check them thoroughly and point out where he’s got it wrong.

  35. 35
    johncryan

    “the district in losing this case would have a tremendous fiscal impact handed to them, which would inevitably end up hurting the students as well.”

    Quite possibly this is true–did you have a point? Surely you’re not suggesting “We can’t afford the damages if found guilty, such that we’d be unable to do our jobs effectively” represents a legitimate defense.

  36. 36
    Bronze Dog

    Given what I’ve seen from rape apologists, I believe the rationale for the victim being partially responsible means that they dared to be somewhere less safe than underneath their bed.

  37. 37
    gussnarp

    Aren’t there certain legal arguments that you’re not even allowed to make? Where the judge just reads the argument and says: “sorry, this is not a legally valid defense, got anything else?” This should just be thrown out summarily. Adult has sex with child. Unless there is evidence that the adult was utterly incapacitated or the child was so large that they were able to literally force themselves on the adult, then the adult is guilty of rape. Period.

  38. 38
    Beatrice, an amateur cynic looking for a happy thought

    gussnarp,

    One of the teachers was already convicted of “committing multiple sex crimes” against her, getting an eight year sentence. That should make it legally clear that they can’t accuse her of being responsible for what has already been recognized in court as her rape.

    So yeah, it’s beyond my understanding how they can use that kind of defense (even if we put aside the fact that it’s a disgusting approach).

  39. 39
    qwints

    Aren’t there certain legal arguments that you’re not even allowed to make?

    There’s no procedural barrier to filing an answer with a frivolous affirmative defense. Although I don’t know California Civil Procedure, I’m sure it has some way to strike frivolous pleadings and sanction the lawyers who filed them. And even if an affirmative defense isn’t legally frivolous, it can be so unsympathetic that it’s not worth making.

  40. 40
    Doug Little

    Ahhhh WTF!!

  41. 41
    lawmom

    This may be a difficult concept for non-lawyers, so I will try to educate you on some basic tort law. The plaintiff is trying to prove the district was negligent. In order to prevail, she has to prove four things: (1) the school district owed her some sort of duty, (2) they breached that duty, (3) she suffered damages, and (4) there is a causal relationship between the breach and her subsequent damages. (1) and (2) are obvious. As for (3), we know she has damages but we don’t know the extent. The issue is (4).

    Now suppose she claims as damages she currently suffers drug addiction. Isn’t is a potentially valid defense that her drug use is not causally related, i.e., her own fault? Can she rightfully claim that every bad thing that has happened in her life since the horrendous actions of the guilty parties was caused by the school district? She was a kid then, but now as an adult the law says she has a duty to mitigate her damages (get treatment, etc.). If she hasn’t, the affirmative defense is valid.

    BTW, my kids are awesome, thanks. Evidence based skeptics and critical thinkers, not knee-jerk reactionists.

  42. 42
    zmidponk

    Dick the Damned #5:

    If a cyclist, who is not at fault in an accident, is injured by a driver, & if the cyclist isn’t wearing a helmet, they are considered to have engaged in risky behaviour, & therefore are less deserving of damages.

    This is at least arguable in the case of a cyclist. The problem, though, is the only equivalent I can think of in cases of rape, especially when the victim is a child, is that they failed to wear a firmly locked chastity belt, with the key left at home.

  43. 43
    Giliell, professional cynic -Ilk-

    She was a kid then, but now as an adult the law says she has a duty to mitigate her damages (get treatment, etc.). If she hasn’t, the affirmative defense is valid.

    Funny thing, the lawyers I know are actually capable of reading:

    carelessness and negligence on said Plaintiff’s part proximately contributed to the happenings of the incident[i.e. when she was a kid]

  44. 44
    lawmom

    You are right, I skimmed it last night and came up with a hypothetical today without re-reading. Hey, at least I looked at it; I’m fairly certain PZ didn’t.

    I still think it’s ridiculous to expect any defendant, in any case, whether an emotionally charged case such as this or not, to plead defenses without knowing what the plaintiff is claiming. It forces the defendant to be over-inclusive because it can be difficult to get leave to amend the pleading later. I have literally never seen a negligence case (out of maybe a thousand I’ve worked on representing both plaintiffs and defendants) in which the defendant did not plead comparative negligence. It is expected.

    But what I saying originally is that it just doesn’t matter. After discovery the irrelevant defenses are waived by stipulation. This will be treated as a liability case from the start and the parties will come to a settlement. Reporting that she lost the case on a compartive negligence basis is just wrong.

  45. 45
    daniellavine

    BTW, my kids are awesome, thanks. Evidence based skeptics and critical thinkers, not knee-jerk reactionists.

    This is one of many reasons why no one likes lawyers.

    lawmom, can you at least concede that the “she was asking for it” defense is a disgusting aspect of the legal system and directly contributes to the low rate of reports of rape? I understand that it’s tactically the best move open to the school under the status quo but I suspect what people are really reacting to is the fact that our court system has institutionalized “bitches ain’t shit” right into the law.

  46. 46
    grepo

    PZ,

    Please don’t turn into a fundy nutcase by not reading the original article and jumping to conclusions. The court has not decided that the girl was at fault. The case is pending and the at fault argument is made by the school district! Yes, the school district is run by amoral assholes, but the court has not condemned little girls for their own rape! Shame on you PZ!

  47. 47
    Giliell, professional cynic -Ilk-

    daniellavine

    This is one of many reasons why no one likes lawyers.

    Tsss, my best friend is a lawyer*. And I let her even use my bathroom!**
    *actually true
    **um, actually true, too

  48. 48
    JAL: Snark, Sarcasm & Bitterness

    BTW, my kids are awesome, thanks. Evidence based skeptics and critical thinkers, not knee-jerk reactionists.

    Right, because saying “you’re at fault for your rape” is fucking wrong and how disgusting it is to even have list as a possible defense is just a knee-jerk wrong reaction.

    So what, your kids are just fine and dandy with blaming victims?

    Jeez, I wonder where they got it from.

    I have literally never seen a negligence case (out of maybe a thousand I’ve worked on representing both plaintiffs and defendants) in which the defendant did not plead comparative negligence. It is expected.

    And it’s wrong to do so in a case where a 12 year old was raped by teachers. It’s disgusting and harmful. That’s what is being said. Quite frankly, I don’t think ‘blaming the victim’ and ‘bitchez ain’t shit’ should be allowed as even a possible defense in such cases.

    But what I saying originally is that it just doesn’t matter. After discovery the irrelevant defenses are waived by stipulation. This will be treated as a liability case from the start and the parties will come to a settlement.

    But it does matter. It’s part of a pattern, a societal issue of blaming victims.

    Reporting that she lost the case on a compartive negligence basis is just wrong.

    Yeah, that’s been pointed out multiple times already. It’s quite possible he read just the first part of the article or how he found the article reported it wrong. So he messed up there and it was quickly corrected in the comments. Big whoop.

  49. 49
    joed

    @47, Giliell
    I like some lawyers. I know a lawyer that really cares about people and she can think critically.

  50. 50
    Colin J

    So he messed up there and it was quickly corrected in the comments. Big whoop.

    It is a big whoop. I’m no rabid PZ-hater like Chas – I know that PZ frequently corrects his mistakes. But he needs to do that here and he needs to do it urgently. It has to be fixed in the original post; comments ain’t good enough.

    What’s going on here is shit, but it’s how the adversarial system “works”. Each side presents their case in the best possible light and tries to demolish the opposition to the wise and neutral third party who makes the final decision. Sounds pretty fair, but somehow the rich and powerful have a much easier time of it than anyone who is poor, weak and personally involved.

    There are other systems, but they depend a lot on how must trust you have in the judiciary. Which would be “not much”, judging from the comments here.

    recently a German court found that a 14 year old did not suffer statuary rape by a stand-in teacher because, since he wasn’t her regular teacher he didn’t have a duty of care or authority over her

    Here in the UK (in 2007), a judge gave a man who’d raped a ten year old girl twice a four-month custodial sentence

    This thread is in SERIOUS need of citations.

  51. 51
    Crissa

    Aren’t the damages she’s claiming stem from self-abuse and suicidal behavior?

    Isn’t that what they’re referring to, not the rape?

  52. 52
    vaiyt

    If lawyers are required to put forth such appalling defenses, then whatever system requires them to do that is at fault. Either way, it’s appalling.

  53. 53
    JAL: Snark, Sarcasm & Bitterness

    It is a big whoop. I’m no rabid PZ-hater like Chas – I know that PZ frequently corrects his mistakes. But he needs to do that here and he needs to do it urgently. It has to be fixed in the original post; comments ain’t good enough.

    I think he will fix it and mentioning it in every post is unnecessary. I doubt its like “Nope, only mentioned my mistake 10 times, forget correcting. Oh but they mentioned it 12 times now I’m correcting my post”.

    If he doesn’t fix it, then that’s bad. It’s been what, a day since the original post went up?

    /shrug.

    I think people are making it out bigger than it is.

  54. 54
    Fern

    JAL, I think people keep bringing it up because it’s disappointing that PZ hasn’t made a correction even though the very first comment pointed out the mistake. As Colin J said @50, “It has to be fixed in the original post; comments ain’t good enough.” The mistake is not a trivial one: there’s a very big difference between a defendant making an argument – or, more accurately, preserving the possibility of making that argument down the road – and a judge actually agreeing with the argument. Who knows, it’s possible (and I hope this is the outcome) that if the defendants continue to pursue that line of argument, the court will hand them their asses for it.

    Crissa @51:

    Aren’t the damages she’s claiming stem from self-abuse and suicidal behavior?

    I found the original complaint (available here), and here’s what it says about damages:

    Ms. Cunnane has suffered, and continues to suffer, from the severe psychological consequences of her horrific and prolonged abuse. As a result of the abuse by both Witters and Correa, Ms. Cunnane sustained severe and permanent emotional, physical and psychological injuries, including post-traumatic stress disorder, severe anxiety, depression, dissociative identity disorder, amnesia, obsessive compulsive disorder, suicidal inclinations and severe emotional distress…. Ms. Cunnane has incurred, and continues to incur, economic damages as a result of the abuse and resultant psychological injuries, including expenses relating to psychiatric care, counseling, and other medical care (all of which will likely continue indefinitely), as well as wage loss and diminution of earning capacity.

    daniellavine @45

    This is one of many reasons why no one likes lawyers.

    Well, thanks.
    ♥ a progressive, feminist, skeptic, civil rights attorney

  55. 55
    JAL: Snark, Sarcasm & Bitterness

    Aren’t the damages she’s claiming stem from self-abuse and suicidal behavior?

    Isn’t that what they’re referring to, not the rape?

    Do you have a link or anything for that?

    Every article I’ve read says they are referring to the rape.
    I couldn’t find any reference to self-harm. All the articles I read said that she felt the school could have and should have prevented what happened.

    She’s also not the only victim suing the school. They claim they reported the abuse in then and nothing was done about it by the school. They came forward in 1996. In 1990 another victim made claims but her case was never investigated because the school didn’t report it.

    I also found this article, which includes more of the school’s response:

    “We certainly empathize with Ms. Cunnane and did not intend to cause her further distress in filing our formal Answer to her Complaint. However, this is a significant case that could have serious consequences for our school district. She is demanding several million dollars in damages. As a result, at this point in the proceedings we have an obligation not to waive any potential legal lines of defense. The district raised nine possible arguments that might be used in court. Attorneys routinely insert these into Answers filed to Complaints. Ms. Cunnane and the media have seized on only one of the nine potential areas and over-exaggerated its importance. As this case moves forward and more facts become known, the district will decide if any of these areas might not be applicable. That can certainly happen in this case.”

    – Superintendent of Schools Bruce Burns

    Yeah but…

    “I just kept reading those words over and over again, that I was negligent and partially responsible and my eyes just locked on that,” Cunnane said.
    “I’m going to cry,” Cunnane said. “It’s just hard to hear that I’m seizing on something, because this is my life and I read those words and I was broken-hearted.”

    “It’s just really important to me that they’re held accountable, because that’s the way I heal.”[Culhane]

    The district claims Cunnane is suing for millions of dollars, but Cunnane said she hasn’t listed an amount.

    So yeah, fuck that school for allowing this shit to happen and blaming the victim. They shouldn’t have filed that defense at all and it doesn’t matter if they don’t follow up with it. The damage is done.

  56. 56
    JAL: Snark, Sarcasm & Bitterness
    recently a German court found that a 14 year old did not suffer statuary rape by a stand-in teacher because, since he wasn’t her regular teacher he didn’t have a duty of care or authority over her

    Here in the UK (in 2007), a judge gave a man who’d raped a ten year old girl twice a four-month custodial sentence

    This thread is in SERIOUS need of citations.

    Oh, look here:

    The decision was described on Wednesday as a “catastrophe” by the head teacher of the school in Neuwied in Rhineland Palatinate, while the girl’s parents said they were “totally devastated” – and furious there was no chance to take the case further.

    Generally people over 21 can have sex with 14-year-olds unless they abuse the younger partner’s “lack of capacity for sexual self-determination” or are in position of power over them.

    The district court in Koblenz overruled a 2010 conviction of sexual abuse of a ward – and lifted the accompanying two-year suspended sentenced handed down by other, lower courts, because the judges decided the man was not her teacher.

    The 32-year-old man had only taught the girl’s class a few times as a substitute teacher, which the court decided was not enough to classify her as his ward.

    Speaking to the Rhein Zeitung newspaper, the girl’s father said it was an admission of complete failure to say that a substitute teacher had no duty of care.

    Oh and here:

    “Last week Judge Julian Hall QC sentenced Keith Fenn to what has been described as a pathetically lenient sentence for the rape of a 10-year-old child. Fenn will serve only four months, when the judge could have used his powers to give a much more severe sentence.”

    Teh Google it is useful.

  57. 57
    Fern
    Aren’t the damages she’s claiming stem from self-abuse and suicidal behavior?

    Isn’t that what they’re referring to, not the rape?

    Do you have a link or anything for that?

    I know you weren’t addressing me, but I’ll jump in anyway. My reading of the school district’s answer is that they are alleging that the plaintiff was negligent both in her actions leading up to the rape (“said carelessness and negligence on said Plaintiff’s part proximately contributed to the happenings of the incident,” with “the incident” being the rape) and negligent in her response, presumably because she didn’t mitigate her damages (“and to the injuries, loss and damages complained of”). The latter argument is par for the course in pretty much any civil case, although it can be applied in an assholish way, and it can be extra assholish when you’re talking about someone who was harmed as a minor. But the real problem lies in the former argument.

  58. 58
    JAL: Snark, Sarcasm & Bitterness

    JAL, I think people keep bringing it up because it’s disappointing that PZ hasn’t made a correction even though the very first comment pointed out the mistake.

    Everyone is assuming he’s reading these comments. He’s admitted to not reading all the comment threads before. Maybe if someone emailed him or a moderator did.

    I was being snippy because everyone is repeating it and I don’t want the thread to derail on to that.

    The whole thread is about PZ’s mistake and people saying this defense is okay cuz it’s not like the school really means it or anything bullshit.

  59. 59
    Colin J

    Teh Google it is useful.

    Less so when I’m at work and the subject matter is… sensitive.

    I tend to approach stories of outrageous legal decisions with a truckload of salt. Seems to me the vast majority of them are either urban myths (woman who sued department store because she tripped over her own child) or complete misrepresentations (woman who sued Macdonalds because she scalded herself with coffee). Going into all the issues and complications just ruins a good story.

    Generally people over 21 can have sex with 14-year-olds unless they abuse the younger partner’s “lack of capacity for sexual self-determination” or are in position of power over them.

    Is that for real?? If they acknowledge that a 14 year old has a “lack of capacity for sexual self-determination”, how the hell can an adult have sex with them at all without abusing that lack? Maybe something is being lost in translation, but the very best interpretation is that they have a weird concept re the age of consent.

    Everyone is assuming he’s reading these comments. He’s admitted to not reading all the comment threads before.

    Hey, maybe if we turn this into a 1,000 post thread all about how PZ made a mistake and whether it does or doesn’t matter, he might notice.

    It’d be kind of boring though…

  60. 60
    sonofrojblake

    the very best interpretation is that they have a weird concept re the age of consent

    The very best interpretation is that they have a different concept re the age of consent.

    FIFY.

  61. 61
    Ichthyic

    In a saner country like the Netherlands it genraly assumed that when a vehicle hits a bicycle, the vehicle driver is responsible for damages unless they can prove otherwise (and no helmet doesn’t fly).

    Does this actualy happened in the US?

    it was put forward as a hypothetical analogy by someone else!

    I have no idea how the courts actually mitigate damages based on helmets, I was basing my own guesses on the fact that there are helmet laws in many states in the US.

  62. 62
    daniellavine

    Those lawyers and friends of lawyers complaining about my comment about lawyers:

    public perception of lawyers is pretty poor. You’ve heard the lawyer jokes. Maybe you want to dismiss this public perception as complete bullshit but you should consider that there might be a few reasons for it.

    lawmom’s inability to take a step back from her detached, professional take on this case and to address the iffy morality of basing a civil defense on the premise that a 12-year-old girl was “asking for it” makes lawyers look bad. The “knee-jerk” crack does this as well; again, she’s not taking a step back and considering the moral question so in her way she’s also taking a “knee-jerk” reaction by not considering more than her professional point of view on the question.

    I am irritated by the assertion that lawyers have any special standing with respect to determining morality or immorality in situations like this. The fact that arranging for such a defense is a tactically sound move has no bearing on the morality of it.

    This “oh, you precious darlings, you just don’t understand” approach to questions of morality is arrogant and entitled and not — at least in my experience — very rare among lawyers. If you don’t think your profession gives you magical insights into the human condition then I’m probably not talking about you.

  63. 63
    No Light

    Colin -

    I tend to approach stories of outrageous legal decisions with a truckload of salt. Seems to me the vast majority of them are either urban myths (woman who sued department store because she tripped over her own child) or complete misrepresentations (woman who sued Macdonalds because she scalded herself with coffee). Going into all the issues and complications just ruins a good story.

    So tell me, Colin, what. possible “issues and complications” render the case of “Man rapes ten year old, judge said she was dressed provocatively and gave the defendant a four month sentence” in a better light?

    Please do tell

    How much salt do you need to ingest for this one:

    Two men in Luton who raped an 11-year-old girl have been sentenced to just 40 months despite guidelines recommending a sentence between 8 – 13 years for those convicted of raping a child. The reason for this lenient sentence was the judge’s assertion that the girl looked older than her age. He also claimed that she was a “willing” participant in her own rape.

    You know what, as great as it must be to play hypersceptic, and claim that these “stories” are simply misunderstandings. or media spin, the fact is that they happen. They happen all the time. Children are blamed for the horrific violations visited upon them, just like adult women are.

    I understand that it’s hard to accept that it happens, that it’s uncomfortable to think of a world where judges hold victims of rape as provocateurs, but guess what? it’s real. Women know. how real it is, know that reporting rape is virtually pointless, and likely to be as traumatic or more traumatic than the original assault.

    http://www.mirror.co.uk/news/uk-news/shock-as-judge-sentences-rapists-to-just-737039

  64. 64
    Giliell, professional cynic -Ilk-

    This thread is in SERIOUS need of citations.

    I tend to approach stories of outrageous legal decisions with a truckload of salt.

    Here’s some depressive news: Women and children getting raped and courts dismissing it, blaming them and acquitting the rapists or letting the get off lightly is more than usual.

  65. 65
    Ogvorbis: Still failing at being human.

    Now, Giliell, if the post was about a man who lost a custody case, or got taken to the cleaners in a divorce, or was falsely accused of rape, I’m sure dommenters would require the same level of citations and salt seen here.

  66. 66
    qwints

    I’m quite sure all the legal practitioners would have the same amount of skepticism. There are very real cases of attorney and judicial misconduct (e.g, the recently resigned Judge Hatch of Arizona), but there are also a plethora of cases like this one where a blog post totally misstates what’s actually going on in a case.

  67. 67
    Giliell, professional cynic -Ilk-

    but there are also a plethora of cases like this one where a blog post totally misstates what’s actually going on in a case.

    Like?
    We’ve heard the “Lawyers defense” often enough by now, thank you.
    They have to present all possible defenses?
    So, why didn’t they include:
    -School was run by aliens at that time
    -Chemtrails!
    -The girl herself is a lizzard who travelled in time?

    Because they are just as likely explenations as the one that a kid could be responsible for her own rape.

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