State reverses course in sex case

LINCOLN (AP) — Nebraska Attorney General Jon Bruning on Wednesday backed off of an earlier position that the state shouldn't be liable for any damage a 12-year-old girl may have suffered after having sex with a 17-year-old boy placed in foster care in her home because she told police the sex was consensual.

Bruning reversed course after the Associated Press reported the state's defense strategy, which was outlined in court papers filed in Hall County District Court last week.

Bruning was aware of the strategy for about a week, and said he had been analyzing whether it was appropriate. The story, he said, encouraged him to decide Wednesday to change tactics.

“I've spent my career trying to protect children, so I will not allow the state to allege (consensual sex) when a 12-year-old is having sex with someone,” Bruning said. “The state as a matter of policy should never say a victim had anything to do with her victimization.”

The girl is suing the state for emotional and psychological damages she said she suffered as a result of “inappropriate sexual intercourse.”

Her attorneys argue the State Department of Health and Human Services failed to remove the boy from the family's home after the girl's mother told the agency she was worried about a “possibly growing relationship” between the boy and her daughter. They say the mother found the two having sex a few weeks later, in February 2008.

Her attorney, Mark Porto, said the girl “has had difficulty going forward,” after having sex with the boy.

The state disputes the plaintiff's account. Assistant Attorney General Michael Rumbaugh said in court filings that the mother never relayed concerns about a relationship and that the state learned of the concerns in a police report from the day the sex was reported.

The sex “was determined to be entirely consensual,” by police, Rumbaugh said in the court filings. According to a copy of the police report, the girl told an officer she and the 17-year-old had had sex about three times, beginning in November 2007, and that she had consented to the sex.

Nebraska's age of consent is 16, however statutory rape cannot be charged unless the offender is at least 19 years old, according to Chief Deputy Attorney General David Cookson.

The boy was old enough to be charged with sexual assault or molestation, but Cookson said neither was pursued because the girl said she was not forced to have sex.

The boy ended up pleading guilty last year to contributing to the delinquency of a minor and was charged as an adult even though he was a minor at the time he had sex with the girl. He was sentenced to probation.

The girl, conceivably, also could have been charged with contributing to the delinquency of a minor because the boy was a minor at the time.

She was not charged because she was so much younger than the boy, according to the Hall County Attorney's Office.

The state initially argued that because the girl consented to the sex, she took a risk of suffering damage. That approach, they argued, would not have been taken in a criminal case but was an appropriate response to a civil lawsuit because the actions of the one suing must be considered.

The girl's attorney, Mark Porto, had called that position surprising and strange.

“Our highest attorney taking a position that a 12-year-old can consent to have sexual intercourse — that seems pretty strange to me,” Porto said. “I've never heard of a situation where someone argued that a child of 12 was capable of forming the requisite consent (to have sex).”

Eric Chase, a Los Angeles-based attorney who specializes in defending people accused of sex crimes, called the state's original argument “ridiculous” and said he was shocked that the state was trying to defend itself in such a way, even in a civil case.

“I would never even imagine anyone would conceive that argument — it's whacky,” said Chase, of United Defense Group. “A 12-year-old can consent to play dodge ball and get haircuts. A 12-year-old can't consent (to sex).”

Lincoln attorney Herb Friedman, who has handled similar cases against the state involving sex with minors, said he had never heard of the state using such an argument. He said the state instead tends to argue that neglect on the part of foster parents helps allow sex to occur.

Bruning suggested the state may use that argument now that it has ditched the consensual-sex strategy and also may argue that the state had no way of knowing the 17-year-old would have sex with a child in the home.

Bruning was sharply criticized for his treatment of a 2005 case in which his office argued that a 9-year-old boy was allegedly sexually abused in a foster home partly because of the failings of his mother. Bruning backed away from that position, saying it was a mistake.