Parents sue School Board over alleged sexual assault of 4-year-old boy by VPK students

The parents said their son was subject to a sexual assault by two classmates in his VPK program at Old Kings Elementary.

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The parents of a local child are suing the Flagler County School District, saying their young son was subjected to sexual battery and sexual abuse by two other boys while in his pre-kindergarten classroom at Old Kings Elementary, within view of the teacher’s desk. The child was 4 years, 10 months old at the time of the alleged incident.

The legal complaint, filed by attorneys Howard Butler and Drew Baskin of Jacksonville’s Butler Law Group, seeks damages in excess of $15,000 and names pre-K teacher Carmen Hernandez, Old Kings principals Robin Dupont and Ben Osypian, School District Superintendent Jacob Oliva and the Flagler County School Board as defendants.

The alleged victim had been the subject of “escalating teasing, social exclusion, intimidation, bullying, physical violence, sexual and racial harassment” (the victim was white) before the sexual incident, according to the parents’ legal complaint, and the bullying had been reported “multiple times.” After the incident occurred, the complaint says, the district took inadequate steps to separate the two children who committed the alleged acts from the alleged victim.

In an interview with the Palm Coast Observer, School Board attorney Kristy Gavin said the School District could not comment on whether the parents of the alleged victim had complained previously about the other two boys, because of the ongoing litigation. But, she said, the School District did tell the parents that the children would not be placed in the same classroom in the future.

The parents’ legal complaint refers to the incident as “sexual battery” — that is, rape. A Florida Department of Children and Families report refers to “child on child sexual abuse.”

Here’s what happened, according to the DCF report: On May 27, 2015, one boy asked the alleged victim and a second boy “to have sex.” The second boy said “OK,” and the alleged victim and the second boy followed the first boy to the back of the classroom. The first boy asked the alleged victim to pull down his pants, and, according to the alleged victim, one of the two boys touched the alleged victim’s genitals, and one of the boys kissed the alleged victim’s genitals. 

One of the boys later admitted to touching the alleged victim’s genitals because the other boy involved in the alleged incident told him to. The boy who was alleged to have kissed the alleged victim’s genitals denied doing so, but admitted to touching the alleged victim’s genitals. The report said that “there were no secrets, bribes or coercion to get (the alleged victim) to comply,” but that one of the two boys alleged to have committed the act “offered to be (the second boy’s) best friend if he touched (the alleged victim’s)” genitals.

The DCF report said that the incident “was reported to law enforcement” and that the two boys who had touched the alleged victim were suspended and “will not return for the remainder of the school year.”

The legal complaint said that the two boys who touched the alleged victim “were students with known behavioral problems.”

But Gavin, the School Board attorney, said the children who were the alleged to have initiated the sexual acts did not have a disciplinary history. “We don’t have any documentation of any issues with those children,” she said. 

And, she said, the statement that the boys were given a “three-month suspension” — mentioned both in the legal complaint and in the DCF report — is not accurate. 

“There was no three-month suspension,” Gavin said. “We had come up with a safety plan for the parents, and they were notified that the students would not be in the same classroom. … Disciplinary action that is taken against a student is never disclosed … that’s private. And so a victim may be told that disciplinary action had been taken, but that would be the extent of it.”

Because the incident happened at the end of the 2014-2015 school year, she said, “We would have been looking with an eye toward the next school year, and guarantees on how we would keep that child safe.” But the family of the alleged victim did not return to the VPK program for the following school year.

In a letter dated the day after the alleged incident, the alleged victim’s father wrote in an email to district Early Childhood Education Department coordinator Abra Seay that the family had “had problems with the pre-school right from the beginning,” including bullying and “security issues.” 

“As a result of these careless approaches, my son was victim to a disgusting, disgraceful, appalling, repulsive, heart wrenching sexual incident perpetrated by one of the very children that my wife and I have complained about for quite some time,” the father wrote. 

The parents had told the teacher before the sexual incident that they did not want those particular children near their son, according to the email, and had been “assured they would be separated. On quite a few occasions, my wife and I walked (the alleged victim) into class giving him reassurances of his safety.”

The complaint states that a single teacher, Carmen Hernandez, was in the room at the time of the incident. 

DCF offered counseling for each of the three children. The mother of the alleged victim declined those services. "She wants to keep a state of normalcy and plans on having a busy summer and rest of the year in hopes that in time he will forget that this happened," the DCF report states. 

Of the two other children, the mother of one child declined counseling, and the mother of the other child accepted counseling. "She is concerned that he has too much sexual knowledge from an unkown source," according to the report. 

Neither of the two chldren children who allegedly initiated the incident had a known history of sexual victimization or family domestic abuse, according to the report, and, "Each child has adequate social skills and peer relationships. There are no reports of social isolation." One of the boys, however, had been cited for talking about sex in the past. 

The first count of the six-count complaint states that as a result of “negligent supervision” — by Hernandez, principals Dupont and Osypian, Superintendent Jacob Oliva and the School Board — the 4-year-old victim “suffered repeated severe bullying including but not limited to sexual battery upon his private areas, shame, humiliation, loss of dignity, suffering, inconvenience, mental anguish, post traumatic stress disorder (‘PTSD’), loss of capacity for the enjoyment of life, medical and psychological care expenses.”

The second count of the complaint states that the defendants “intentionally caused or acted with a reckless disregard” by allowing the two boys who’d allegedly initaited the incident “to return to Old Kings Elementary School approximately three months later … causing the Plaintiff … to suffer severe mental anguish, PTSD and forced him to relocate to a different community and school.” Gavin noted that the incident happened at the very end of the school year, after which the alleged victim did not return to the school, and that the parents had been assured that their child would not be in the same classroom. 

The third count states that the alleged victim’s older sister, a student at Old Kings Elementary who has special needs, was bullied and intimidated by one of the two boys alleged to have touched the 4-year-old victim and that the School District didn’t adequately address the bullying, and that the girl “has suffered, damages and losses – including, without limitation shame, humiliation, mental anguish, suffering, loss of dignity, inconvenience, loss of capacity for the enjoyment of life, loss of her special needs educational opportunities, relocation and related psychological care expenses.”

The fourth counts states that the father of the alleged victim suffered “mental anguish, suffering, loss of dignity, inconvenience, anxiety, increased blood pressure and development of heart condition(s), loss of capacity for the enjoyment of life, expense of relocation, related medical and psychological care expenses” as a result of the districts’ actions, and that the mother suffered “mental anguish, suffering, loss of dignity, inconvenience, loss of capacity for the enjoyment of life, expense of relocation, related psychological care expenses.”

The sixth count is for damages for relocation: It states that the “was required to relocate to a suitable environment in New Mexico in an effort to minimize long term psychological damage.”

Gavin said the teacher in the classroom at the time of the incident reported it to the school administration. “At this time, the litigation is in its early stages, and that the school district is constantly striving to ensure that all students remain safe,” she said. “This case was no different. The safety of all students, including the alleged victim, was of utmost concern to us. We took the complaint seriously, and reached a resolution to ensure that all students would be kept safe, including their child.”


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