Officials at a Waianae High School were negligent in not preventing an alleged rape between two special education students, a lawyer told jurors Tuesday.
The trial is for a mother’s lawsuit against Hawaii’s public school system alleging her daughter was raped by a classmate in a coed bathroom in 2013. Other bathrooms on the campus were under construction, so the girl used one that had a sign bearing both male and female icons.
“It’s a case about the failure of accountability,” Michael Green, representing the plaintiffs, told jurors in his opening statement. School officials were “deliberately indifferent” about the allegations, he said.
The girl, who was a freshman at the time, has the intellectual ability of a second-grader, and the boy, who was a senior, has a very low IQ, Green said. It was up to school officials to keep the students safe, including from each other, he said.
The case is about a sad story, “but that’s all it was — a story,” said Deputy Attorney General Marie Manuele Gavigan, who is representing the state Department of Education. Video surveillance footage shows the two students weren’t in the bathroom at the same time, she said.
But the students’ teacher didn’t know that then and immediately took action when she heard what happened, including having police called to the school, Gavigan said.
The teacher testified that she noticed the boy looked “sick” when he returned from the bathroom. He told her he touched the girl and wanted to know if he would be suspended, the teacher said. So she asked him if he touched her private area and responded that he did.
So the teacher talked to the girl, who told her the boy raped her in the bathroom, she said.
In her statement to police, she wrote that there was a previous “touching incident” between the two students that took place off-campus about six months earlier.
Police were called to respond to the alleged attack but no charges were filed, Green said. After the mother sued, the state Department of Education brought the boy into the case as a defendant, saying that if a jury finds the state liable, then it should be the boy who is responsible.
“We don’t know what took place there,” the boy’s attorney, Eric Seitz, told the jury. Whatever happened is the school’s responsibility, he said: “The Department of Education is trying to avoid responsibility … by pointing a finger at a special education student and saying he’s responsible, not us.”