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Title: School Officials May Not Be Liable To Student Who Consented to Sex
Author: Jack Ryan
ID: LL86
Issue: SU1-3
Issue Date: 2004-05-01
Edition: School
Type: Article

Body: In Tate v. Board of Education of Prince Georgeís County, slip op. No. 0036 (Ct. Special Appeals MD. filed March 5 2004) the Maryland Court dealt with a common liability issue for schools. At issue in the case was the liability of a school when a student is sexually assaulted by a person who has no connection to the school, during the school day.

Tanika Tate was 15 years old when a relative, Kevin Shields, made sexual advances towards her over the Thanksgiving holiday. Before Tanika left for school the following Monday, Shields telephoned her and informed her that he was going to pick her up at school prior to dismissal so that he could take her to his house and have sex with her.

At some point during the day, Shields went to Tanikaís high school and asked that she be dismissed. A secretary in the office told Shields that Tanika could not be dismissed without the permission of her parents. Shields then asked if he could obtain a key from Tanika. The secretary then called Tanika to the office so that the key could be exchanged. The secretary followed Shields and Tanika out of the office but upon seeing Tanika heading toward class and Shields heading toward the exit she discontinued watching them.

Tanika left the building with Shields and went to Shieldsí home. While there, Shields told Tanika to take off her clothes, when she did not, Shields removed Tanikaís clothes. Shields then had sex with Tanika. Ultimately Shields was convicted of the sexual offenses.

Tanika filed suit against the school alleging that the schoolís negligence in allowing her to leave school led to the sexual assault. The school sought to be relieved from the suit based upon the fact that Tanika ìassumed the riskî of a sexual assault when she left the school with Shields. A person who is injured after knowingly assuming the risk of a dangerous activity cannot sue when the injury that was known and foreseeable ultimately occurs. Tanika argued that she could not have assumed the risk since she was under the legal age to consent to having sex.

In its review of the case the court noted that Tanika was fully aware of the risk prior to participating in the ruse to leave school with Shields. The risk of sexual assault was also readily apparent due to Shieldsí prior sexual advances and the phone call on the morning of the incident in which he told Tanika that he was taking her from school for the express purpose of having sex. The court also noted that Tanika had several options available to her that she could have chosen rather than going with Shields. Among those were telling her mother; simply not participating in the key ruse or giving Shields the key and not going with him.

In its analysis, the court recognized that in many states, including Maryland, a child may be held responsible for assuming the risk of some injury that occurs to them. The court noted that the injury ìmust not be an unusual danger or one that a child of a given age could not comprehend, understand or appreciate.î

The court went on to reject the proposition that the inability of a child to consent to sex for purposes of a criminal prosecution has any application to a civil proceeding against a third party, in this case the school. As a result the court concluded that Tanika could not recover since her consent amounted to an assumption of the risk



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