A plaintiff claims that she was 15 years-old when she was subjected to sexual molestation by her then 38 year-old teacher at a charter school. Accordingly, she brings a Section 1983 action (1) against the school and its director/principal for failure to train and supervise, and (2) against the teacher for denial of equal protection. She also files a Title IX sex discrimination claim against all three defendants, a state law claim for negligent hiring and supervision against the school, and a state law invasion of privacy claim against the director/principal, who allegedly made a public announcement to the student body, disclosing details of the sexual conduct between the teacher and the plaintiff. During a deposition of the plaintiff, the parties disagree about the proper scope of questioning. Among other things, defense counsel wants to interrogate the plaintiff about whether she "consented" to the sexual encounters with her teacher and whether the teacher’s sexual behavior was "unwelcome" by her. The parties thereafter make their arguments to the court on the issue. How should the court rule? In its recent opinion in Doe v. Willits Unified School Dist., 2010 WL 2524587 (N.D. Cal. 2010), the United States District Court for the Northern District of California permitted such questioning. I strongly disagree.
Initially, the court noted that the Advisory Committee’s Note to the federal rape shield rule, Federal Rule of Evidence 412, indicates that
Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery.
The court thus had to decide whether the plaintiff’s "consent" to the teacher’s sexual behavior was part of an element or defense in the case, and ostensibly found that it could only be an element in connection with the plaintiff’s Title IX claim. The court then noted on the one hand "that the question has not yet been addressed in th[e Ninth C]ircuit." On the other hand, it found that each of the cases outside of the Ninth Circuit which had specifically considered whether consent is an element of a Title IX case had "held that consent is not part of the cause of action." Particularly persuasive for me was the opinion in Mary M. v. North Lawrence Community Sch. Corp., 131 F.3d 1220 (7th Cir. 1997), in which the Seventh Circuit held that if "children cannot be said to consent to sex in a criminal context, they similarly cannot be said to welcome it in a civil context. To find otherwise would be incongruous."
But rather than join all other courts and preclude the subject interrogation, the Northern District of California found that
because the law in this circuit is unsettled, and because this Court does not wish to prematurely define the elements of the causes of action in this case (a question more properly addressed by the trial judge), this Court will allow limited questions on the issue of whether plaintiff welcomed or consented to her sexual encounters with [the teacher]. Defendants therefore generally may ask plaintiff whether she wanted to engage in sexual conduct with [the teacher], and/or whether she initiated the sexual relationship.
Really? Rather than step on the toes of the trial judge or the Ninth Circuit, the court decided to allow interrogation of a child as to whether she "consented" to sexual relations with her 38 year-old teacher when she was 15? How exactly does such a conclusion cohere with the Advisory Committee’s declaration that courts should presumptively issue protective orders and the categorical chorus of precedent precluding such interrogation? In seemingly trying to protect its opinion from appellate review, the court removed protection from the plaintiff.