Lawsuit against Fresno Unified alleges 6-year-old sexually assaulted classmate at recess

A lawsuit filed against Fresno Unified alleges that the district is responsible for the sexual assault of a 6-year-old girl during recess – and the perpetrators were her fellow first-grade classmates.

The case has come to light because it’s set to be discussed in closed session at Wednesday’s school board meeting. It stems from a 2013 incident at King Elementary School, and beyond the issue of liability it raises a longstanding legal question: Can a child be guilty of sex crimes?

According to a Fresno police report from 2013, an officer was dispatched to the school in west Fresno in regard to a possible sexual assault involving three boys, ages 6-7. During a game called “boyfriend/girlfriend,” the girl was undressed and inappropriately touched behind a backstop on campus by at least one of the boys, according to the report.

The guardian of the girl, who is a foster child and is not identified in court documents, is suing Fresno Unified for negligence, and alleges school employees failed to sufficiently supervise the girl during school hours.

The case landed with the Fresno Police Department’s Sexual Assault Unit, which concluded no crime was committed based on the involved parties’ ages. Fresno County Child Protective Services was contacted to inquire if the inappropriate touching done by one boy was “a result of learned behavior” at home, according to the police report. It’s not clear from available documents whether the question was answered.

In 2014, the girl, who has special needs, allegedly experienced another sexual assault by a classmate. Then, a teacher saw a boy “tickle” the girl in the lower abdominal region while walking in line to class. Police were not involved in that incident.

“This matter arises from the defendant’s failure to supervise and protect a special needs student/minor from sexual misconduct on two occasions during school hours,” Fresno attorney Kara Hitchcock says in a court filing in 2015. “Defendant was aware of plaintiff’s needs but allowed her to be taken behind a backstop by the boys without supervision and sexually assaulted, as well as being touched inappropriately on a second occasion.”

In 2015, attorneys for Fresno Unified asked a judge to ban all references to the term “sexual assault,” pointing to state law that says people under the age of 14 are incapable of committing such a crime.

“Plaintiff fails to allege any facts that would suggest clear proof the boys knew their acts were wrongful, or that criminal charges were brought against them,” Bruce Berger, attorney for Fresno Unified, says in a request to strike the term in April 2015. A hearing in Fresno County Superior Court is scheduled for May.

Attorneys for the girl say Fresno Unified’s request is off-point: The case isn’t alleging a crime against the boys, it’s alleging negligence on behalf of the school district. Her attorneys have opposed attempts to drop the term “sexual assault,” though.

“She alleges (FUSD) had a responsibility to protect her from being sexually assaulted by the boys,” Hitchcock says in an opposition to the district’s request to drop the sexual assault accusation. “Whether or not those boys committed a crime does not change the fact that she was assaulted in a sexual manner.”

Child-on-child sexual violence has been reported across the country, with people as young as 10 being registered as sex offenders. Juveniles account for more than 35 percent of those known to police for committing sex offenses against minors, according to a report by the U.S. Department of Justice.

In 2016, attorneys for Fresno Unified requested a mental evaluation of the girl after “months of negotiation” with her attorneys over the matter.

A Fresno Unified spokesman declined to comment, citing pending litigation. Attorneys for the plaintiff did not return phone calls.

This story was originally published January 5, 2018 at 11:41 AM with the headline "Lawsuit against Fresno Unified alleges 6-year-old sexually assaulted classmate at recess."