Education Matters: What constitutes a sex crime?

Two female students at Earl Warren Middle School reported seeing a substitute teacher viewing pornography on his computer during class on June 1.

However, the San Dieguito Union High School District disputes that it was pornography, and the police say even if it was, viewing it isn’t a crime unless it’s child porn.

The mother of one of the girls stated that her daughter knows what she saw, and what she says she saw were pictures of topless women, which the mother said should be regarded as a possible sex crime.

“My daughter never once wavered from her story of what she saw, and she was interviewed three times,” said Michelle (last name withheld to protect the identity of the student).

When the incident was reported by Michelle’s daughter to the school administration, the school did not report it to the police, which Michelle said was a deliberate dereliction of duty.

Instead, EWMS principal Adam Camacho said he instructed his technology department to seize the computer and see what was on it. Camacho said no images were found

“We weren’t able to substantiate [the claim], but you just never know,” he said. “We just followed our protocol and dismissed the substitute,” out of an abundance of caution.

“We communicated with the parents,” he said, “and made sure the kids were supported by our counseling staff and our assistant principal.”

But Michelle disagreed with that, saying, “Adam did not return phone calls for several days.”

Further, Michelle said the assistant principal, Kaitlin Wood, and the school psychologist, Heather Lutz, both told her there were pictures on his computer that validated the students’ claims.

Torrie Norton, SDUHSD’s Associate Superintendent of Human Resources, who was told of the incident by Camacho, said Wood and Lutz gave statements indicating there were no pictures.

“I can’t tell you what they said, but I can tell you what they didn’t say,” Norton said. “They didn’t say there were pictures on the computer.”

She said the teacher, who has been with the district five to six years with no prior violations, was an at-will, day-to-day substitute who has no due process rights.

He was dismissed, Norton said, “to err on the side of caution.” And he was reported to the Calif. Commission on Teacher Credentialing.

“So now it’s up to the CTC regarding what they do with his credential and what they do with him,” Norton said.

Penal code

Michelle said it was inappropriate for school administrators to conduct their own investigation and decide for themselves whether what happened was a sex crime.

Citing Calif. Penal Code sections 11164-11174.3 that she says makes the school mandatory reporters, she said the school should have immediately called the police.

When I asked Camacho if it was reported to the police, he confirmed that it was.

“In fact, they came the next day and we shared our investigation with them and that’s where we left it,” he said.

However, note the passive voice: “It was reported.”

Later in the interview, I rephrased my question and asked again if he had reported it to the police. This time he hesitated, finally stating, “The police were notified by the family,” admitting he did not call them.

“Again, we weren’t able to substantiate anything, so we did what we needed to do and that was notify HR,” he said, referring to Human Resources. “Had we suspected anything or seen anything, that would have been probably our second call after HR.”

When I asked if the school has an obligation to contact the police when a student reports something like that, he said, “We do … [but] this was something we could see at our end with our technology.” And it was not reported, he said, because the claim was not substantiated.

Norton said it was not necessary for Earl Warren to report the claim to the police and that Camacho took the correct action by conducting his own investigation first.

She also dismissed the students’ reports, saying, “The girls aren’t sure what they saw at this point.”

She said the girls believe they saw women with minimal clothes, but “there are scantily clad women all over our community.”

Michelle was furious at the implication that her daughter was confused about what she saw, when her story has been consistently told to a number of people. She said her daughter did the right thing to report the incident, knows what she saw, and has been traumatized by the event and the repeated interviews by authorities.

The family of the second girl did not want to be involved any further or identified, Michelle said.

Strong filters

Norton said the teacher, whose name she would not reveal, gave a statement that he was looking at friends on Facebook while the students watched a film. She said that was inappropriate to do in a classroom, so he was immediately released from employment.

Both Camacho and Norton said teachers are not permitted to bring their own computers to school and must use the school’s computers.

Both also said it’s not possible for teachers to access inappropriate sites on the school computers because access is blocked.

“We have really strong filters,” Camacho said. “Any time any teacher or student or substitute logs in, anything that’s searched … all those hits get recorded.”

He said it’s possible something like a banner ad may have flashed on the screen that the tech dept. would not be able to see. “But I’m confident that there were no sites he was surfing,” Camacho said.

There was no way he was looking at pornography? “No, no, no. It’s super blocked,” he said.

Norton agreed.

“Everything is blocked on the school computer,” she said. “Even if you attempt to go to a website, it will say ‘blocked.’ And there’s no access.”

Michelle said her daughter’s report states that he undid the settings to get at sites previously blocked. She said the math class was watching a movie, her daughter was bored, leaned back in her chair, and saw the pictures on his computer – and a second girl also reported seeing it.

It wasn’t until one week after the incident, on June 8, that Michelle said a sheriff’s detective took possession of the computer from the school and interviewed her daughter.

Pictures found

The sheriff’s department initially said there were no pictures on the computer.

On June 14, Sheriff’s Detective Sergeant Rich Eaton said they investigated the incident and no crime was committed.

“Unless new evidence is presented, the case is closed,” he said.

He said schools are obligated to report a crime, but “from everything I know, this was handled appropriately, just maybe not to the liking of the parents.”

Two days later, Michelle told me Juvenile Detective Frank Feliccia called to tell her they had found pictures on the teacher’s computer.

“‘We have the computer, we have the pictures,’ he told me,” Michelle said. She said Feliccia told her they can’t prosecute the teacher, though, because “there’s no intent.”

“He said they’re really sorry but there’s nothing they can do,” she said.

Attempts to contact Frank Feliccia were unsuccessful.

Sgt. Eaton, in an interview June 20, confirmed that they did find pictures on the computer, but added, “Looking at pictures on a computer is not a crime.”

When I asked what kind of pictures were there, he said, “There’s no reason to discuss something that we’re not working on.”

When pressed, he said there were several pictures and the teacher was online surfing the Internet.

“But whether they were in bikinis, whether they were nude, whether they were in bathing suits … there’s no crime,” he said. “If there was child porn, we’d be on it in a second.”

Eaton said if the parents have a problem with this, they should focus on the school. “It’s a school issue, not a sheriff’s department issue,” he said.

Eaton could not say why the school administration claims they found no pictures.

“We had nothing to do with the school other than we were called and went to investigate,” he said. “We found nothing and we’re gone.”

Norton found it odd that the sheriff’s department would contact the parent with an update on the case.

“It seems really strange that they would call the parent and say this is what we found,” she said, noting the school district was not contacted by the authorities with this new information.

Protecting students

If the teacher was not viewing child porn and if he didn’t intend for it to be seen by anyone but him, there probably isn’t a crime.

Even so, Michelle said she’s appalled that the teacher will not be prosecuted and worries that he could be placed back in rotation as a substitute teacher for other districts.

“I want to know that this man will never teach or be around children again,” she said.

She has other concerns about the conduct by Earl Warren administrators.

“As mandatory reporters they had a legal obligation under the California penal code to report this situation to the police which they never did,” she said. “I want to know that in the future this situation will be handled the way it is supposed to and not the way they want to handle it.”

Michelle was particularly upset about the way her daughter’s report was minimized, questioned and even dismissed.

“I think it is disgraceful that my daughter did the right thing in reporting this teacher and yet was made to feel that it wasn’t a big deal,” she said in an email. “I think it is appalling for her to hear ‘She doesn’t know what she saw and was confused.’ Obviously not true as her story never changed and the pictures were found on the computer.”

Her final comment: “I want all kids to know they are safe and it is always the right thing to report situations like this, and that doing the right thing may not always be easy.”   

Senior Education Writer Marsha Sutton can be reached at suttonmarsha@gmail.com.

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