The Register-Herald, Beckley, West Virginia

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May 5, 2013

Judge rejects settlement in alleged rape case

Claims against a teacher listed in the suit thrown out

— A federal judge has rejected a $65,000 settlement offer in a case involving the alleged rape of a young girl at the former Mount Hope High School, while at the same time throwing out negligence claims against one of the teachers originally listed in the suit.

U.S. District Judge Joseph R. Goodwin rejected the settlement April 22 under the advisement of the girl’s guardian ad litem, appointed to represent her interests in litigation.

Maryl Sattler, the guardian, wrote in an April 19 filing with the court that she had “serious reservations” about the proposed settlement.

She says the current settlement does not cover the costs of future psychological care or private schooling and does not adequately compensate her for her suffering. Only about $34,000 would remain of the $65,000 after attorney’s fees.

The civil suit was brought forward in 2011 by Stephen and Sharon Endicott of Pax, the girl’s biological grandparents and adoptive parents.

The alleged rape of a 13-year-old girl referred to by her initials, B.E., in court documents, occurred Nov. 12, 2010, at the high school. She asserts that after school, five members of the high school basketball team forced her into a stairwell and raped and physically and sexually assaulted her in the presence of another female student.

“This young student has been dealt a grave injustice by the Fayette County Prosecutor’s office by not prosecuting the five young men and by the Fayette County Board of Education for not providing her a safe environment and a quality education,” a committee calling itself Justice for Bailey recently told The Register-Herald in an e-mail.

In an order filed Wednesday, Goodwin also granted a motion for summary judgment to defendant Linda Nevi, who was accused of negligence for her alleged role in the event.

Nevi was B.E.’s cheerleading coach. The plaintiffs claim that Nevi had asked the girl to help assemble cheerleading uniforms, which took so much time that she missed her bus.

However, the defense submitted video evidence it said proved that B.E. left Nevi’s office before school recessed. And depositions showed that B.E. stayed after school intentionally with a friend.

The judge concluded that Nevi “had no connection to B.E.’s presence at the school after hours.”

On the other hand, the court says there is still a big question about whether boys basketball coach Bo Morrison should have been supervising the boys who were allegedly involved in the rape.

The principal and vice principal — Mike and Leah Hutchins — also still face charges of negligence for not ensuring students were adequately supervised. Evidence shows that they were aware of disciplinary and behavior problems in the school’s hallways, the judge wrote, after a state audit said as much.

Evidence suggests that students used unsupervised areas of the school as spaces to have sex; condoms and semen were found in classrooms and in the stairwell where the assault occurred.

“It does not appear from the record that policies were put in place to ensure that students present after school hours were safe from student-on-student assault,” wrote Goodwin.

Several of the students accused of attacking B.E. had disciplinary records that included harassment, physical assault, inappropriate touching and punching out a window.

The Endicotts’ Title IX claims against both the Fayette County Board of Education and the West Virginia Department of Education have survived the summary judgment motion stage.

B.E. — an honor roll student, cheerleading captain and member of the homecoming court — claims that after the events of Nov. 12, 2010, she faced harassment at school, that no alternative education was provided by the school system and that the hostile environment deprived her of educational and extracurricular opportunities.

“One of the assailants was allowed to return to school where he resumed his scholastic career and availed himself to all benefits and programs the Board would offer him,” wrote the plaintiff’s lawyers in a supplemental memo to the court.

“Even today he is a school basketball star. By contrast, the plaintiff was vilified, ridiculed, humiliated and attacked upon returning to school.”

The plaintiffs say that a teacher sent by the county to the Endicotts’ home for homebound education, Jean R. Garrett, is related to one of the accused attackers and inappropriately discussed the case with B.E. When they complained, they say they were never provided with another instructor and were forced to go to Raleigh County for schooling.

In 2011, the Fayette County Prosecuting Attorney’s office chose not to bring criminal claims against the alleged rapists, saying that the girl recanted.

In October 2011, former Assistant Prosecutor Matthew England told The Register-Herald that B.E. had taken back her original claim that one of the boys had sexual intercourse with her, saying she was only forced into oral sex. Oral sex is also considered sexual intercourse under West Virginia law.

“It’s been really difficult to try to determine what exactly happened,” said England. “There were just so many inconsistencies and then with the victim recanting the significant portion of what she initially told law enforcement, it just left us with insufficient evidence to go forward.”

Nevertheless, he wrote in a letter to the Fayette County Board of Education that “medical evidence supports (B.E.’s) allegations of sexual intercourse.”

Testimony of the girl’s friend, who was with her at the time of the alleged assault, also corroborates that a sexual assault occurred.

In her filing, Sattler writes that “it is common for victims of sexual assault to recant in stressful situations.”

The recant, which Sattler said may have been a misunderstanding between B.E. and England, was one of the major reasons a criminal charge was not pursued.

But a medical specialist testified that “Individuals of this age who are sexually assaulted almost — well, more times than not, recant, especially when they come under social pressure.”

A pretrial conference is scheduled for Monday, with a jury trial set for Aug. 26.

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