San Bernardino City Unified ‘indifferent’ to report of 11-year-old student’s alleged rape, feds say

A federal investigation into the alleged rape of an 11-year-old girl in a restroom at a San Bernardino middle school has found that administrators failed to properly respond to and investigate the attack, which was recorded on video and posted online.

In a 14-page report issued Nov. 25, the U.S. Department of Education’s Office for Civil Rights concluded that administrators at Cesar E. Chavez Middle School and the San Bernardino City Unified School District were “deliberately indifferent” to a non-English-speaking mother’s report of her daughter’s sexual assault in a restroom stall by two boys. Administrators did not follow federal Title IX regulations in investigating complaints of the attack, according to the report.

Title IX was enacted in 1972 to protect individuals from sex-based discrimination, including sexual assault. Title VI, which the OCR also found the district violated, prohibits discrimination on the basis of race, color and national origin.

“This school did all the wrong things,” said Steven Figueroa, an advocate for the girl and her mother who filed the complaint with the federal agency in February 2023 that triggered its investigation. The complaint alleged the district told the girl’s mother it was “overwhelmed with complaints” and, therefore, did not investigate.

Figueroa said he was astonished by the lack of supervision and security at the school that allowed the assault to occur in the first place, as well as the school’s alleged failure to provide mental health services for the girl’s severe trauma or an individualized education program after her grades started slipping from A’s to D’s and F’s.

Recorded on video

The alleged rape occurred on Oct. 11, 2022, and was recorded on video by another student who entered the restroom while the girl and boy were engaged in the sex acts. He shared the video with two other students who then posted it online, according to the report.

One of the students edited the video to include text that said “Whore” before posting it on social media. He subsequently recorded another video of the girl as she was walking out of the school cafeteria, labeling the video with text saying, “Should Not Have (expletive)” and “You Should Have Not Done It” before posting it online, according to the OCR report.

The sex video circulated online for more than eight months, and the girl was subjected to continual bullying by other students at school, according to the report.

“They would follow her at school, laughing at her, saying, ‘We saw you on the video,’ and she would just break down,” Figueroa said.

When the girl’s mother followed up with Principal Robert Morales about the incessant bullying, Morales, who is now the district’s human resources director of recruitment and employment, told her there was “nothing he could do,” according to the report.

School administrators became aware of the video on Oct. 12, the day after the alleged rape, after pandemonium erupted on campus when a throng of students was observed chasing after “students they thought were in the video,” according to the report. Administrators obtained the video — a seven-second snippet of the girl and her alleged rapist behind a closed stall door.

The vice principal told OCR investigators they were able to identify the girl and the boy by their shoes visible in the video.

When interviewed by administrators, the girl referred to her alleged attacker as her boyfriend and said the sex was consensual. Separately, the boy told the same story. The girl said she and the boy had prearranged to meet in the restroom at 10:40 a.m.

Administrators suspended all of the involved students — including the alleged victim — for two to five days. The boy and girl seen on the video were disciplined for “committing an obscene act in the school restroom.” The other three students were suspended for cyberbullying, according to the report.

Title IX violations

School and district administrators, according to the report, did not follow federal civil rights mandates for investigating complaints of sex-based harassment after the girl’s mother reported the alleged rape to the school on Oct. 13. She reported her daughter was raped both by the boy seen in the restroom stall as well as the boy who recorded the video. Her daughter did not report she was raped because she was scared and feared retaliation, the report said.

Although school police were called to investigate, district records do not show any further action was taken in response to the mother’s report, and school administrators did not immediately inform the district’s Title IX coordinator, Mike Medina, of the mother’s complaint, according to the report.

Additionally, the mother was not immediately informed of the procedure for filing a formal complaint, per Title IX regulations, and was not provided a complaint form in Spanish. It delayed her ability to file a complaint for nearly a month.

When the mother finally did meet with Medina to file a formal complaint on Nov. 8 — 26 days after she reported her daughter’s  alleged rape — Medina had to translate for her, typing up her complaint in English as she dictated it to him in Spanish, according to the report.

As a result, the mother’s complaint contained minimal details about the encounter and omitted pertinent facts, including those from a medical report she provided to Medina noting “findings that may be caused by abuse,” as well as information about the other involved students and the video recordings.

Lawsuit filed

Gary Dordick, a lawyer representing the alleged victim and her mother, filed a lawsuit in San Bernardino Superior Court in September 2023 alleging negligence, dangerous conditions on public property and harassment. He did not respond to repeated requests for comment.

“Plaintiff was violently and sexually attacked, abused and raped by the subject rapists,” according to the lawsuit.

When the girl and her mother reported the incident to then-Principal Morales, he told them that, after viewing the video, he did not believe the girl was raped and suspended her, according to the lawsuit.

“Defendants … were negligently and recklessly violating their duties” to supervise, protect and control the students of Cesar Chavez Middle School, according to the lawsuit.

The lawsuit claims the girl began to struggle with severe post-traumatic stress disorder, depression, anxiety, learning disabilities and thoughts of suicide after the alleged rape, and the district provided her no medical attention in its aftermath. Nor did the district do anything to stop the girl’s ongoing harassment, have the videos removed from social media, or evaluate the girl for an individualized education program upon her mother’s request.

Figueroa said the girl, now 13, is attending another middle school in the district.

No charges after police investigation

Figueroa said the girl’s mother took her daughter to Loma Linda University Medical Center when the school refused to provide her medical attention after the rape complaint was filed. There, a doctor called San Bernardino school police, who in turn contacted the San Bernardino Police Department to conduct the rape investigation.

A sexual assault response team that contracts with the San Bernardino Police Department examined the girl and found evidence consistent with sexual abuse, namely injury to her anal area, according to the medical report. The case was turned over to the District Attorney’s Office, San Bernardino police Capt. Nelson Carrington said.

The San Bernardino County District Attorney’s Office declined to file criminal charges on Dec. 6, 2023, District Attorney Jason Anderson said.

The case presented several issues for prosecutors, including the fact that both the girl and the boy said the sex was consensual. The day prior to the incident, the two had a conversation on the instant messaging platform Discord about meeting up in the school restroom the next day to “explore their curiosity about sex,” Anderson said.

However, the girl, according to Anderson, also told the investigating officer she was nervous at the time of the incident and did not think things would go as far as they did.

Anderson said there was no evidence the girl had been sexually assaulted by the boy who recorded the incident on video, as the girl’s mother alleged.

Additionally, Anderson said the video snippet showed only the legs and feet of the boy and girl, who appeared to be engaged in oral sex behind the closed restroom stall door.

The girl’s Discord conversation with the boy, Anderson said, reportedly occurred on a school-issued tablet. When the investigating officer requested it from the girl’s mother, he said, she told the detective the device had not worked for a couple of weeks and that she was unable to locate it.

The boy declined to give a statement to police, and there was no indication in the detective’s report that an attempt was made to obtain his school-issued tablet, or any other electronic device he may have used to communicate with the girl on Discord, Anderson said.

His office also grappled with the fact that both the boy and the girl, because they were both under the age of 14, were equally complicit in engaging in illegal sex acts under the law, so prosecutors would have to give equal consideration to criminally charging the girl, Anderson said.

“There is no such thing as consensual sex for anyone under the age of 14. It’s considered a serious felony,” he said.

Given the evidence his office was working with, Anderson said prosecutors declined to file charges.

Expert weighs in

Dr. Roy Lubit, a child psychiatrist licensed in California and New York who consults nationally on child sexual abuse, said child sexual assault investigations require an investigator skilled at interviewing children, making them comfortable and asking pertinent questions.

“It is not uncommon for sexual assault victims, especially children, to deny they were abused out of fear of retaliation, guilt and shame, and it frequently requires multiple interviews before they are able to open up and share what happened to them,” Lubit said.

“Sometimes you have to interview kids multiple times and get them comfortable, and then they’ll talk,” he said. “Children often blame themselves and feel shame when they are victims. They start asking ‘Why was I there? What are other people going to say? Why didn’t I fight back?’ “

He said punishing a child for sexual activity before determining if it was fully voluntary risks punishing a victim, which causes emotional trauma.

District responds

The school district issued a statement saying that “due to ongoing litigation, we are limited in what we can share” about the reported assault.

“Still, we want to emphasize that SBCUSD is committed to fostering a safe and supportive learning environment,” the statement said. “We continue carefully reviewing the findings to ensure that any necessary steps are taken to strengthen our policies, training and procedures. SBCUSD remains dedicated to fostering trust and accountability within our school community.”

Last month, the district adopted a resolution to provide, upon review and approval from the OCR, a guidance memorandum to district employees and contractors on what they must do if they witness or otherwise learn of sex-based harassment of a student by another student, who to report it to and who is responsible for investigating.

The resolution, signed by Superintendent Mauricio Arellano on Nov. 21, outlines the district’s plan to promptly notify students, parents and guardians who report sexual harassment or sexual assault on how the district’s grievance procedure works, with an assurance they will receive a written notice of the outcome and findings of investigations.

Additionally, the district will provide live or prerecorded training on Title IX policies and grievance procedures to employees and contractors.