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School system attorney: Attack by broomstick-wielding football players charged with rape didn’t constitute sexual assault

Montgomery County Public Schools is battling a federal lawsuit filed by families of victims of the assaults at Damascus High School in October 2018. (Katherine Frey/The Washington Post)

Lawyers for a Maryland school system argued this summer that a violent locker room attack by football players wielding a broomstick and charged with rape did not constitute a sexual assault.

“This is a male-on-male incident. There is no indication that this was motivated by sexual desire,” an attorney for the Montgomery County Public Schools told U.S. District Judge Peter Messitte. “They weren’t yelling sexual slurs about maybe homosexuality or things like that.”

The assertion was made during a July hearing over the school system’s motion to dismiss legal claims filed by families of victims of the 2018 assaults at Damascus High School. The families allege that school officials should not have allowed the Damascus locker room to go unsupervised because they were aware of earlier sexual assaults among boys’ sports teams at Damascus and nearby high schools, and because one of the attackers had demonstrated a propensity for sexual harassment and violence.

The lawsuit rests heavily on Title IX, a broad education law that in part is designed to protect students against severe sexual harassment. Designating the attacks as nonsexual, according to the school system attorney’s arguments in federal court, would move the case away from Title IX and dismiss a key claim made by the victims’ families. The attorney, Sean O’Hara, noted that in the families’ own legal claims, the motivation for the attacks “was to scare, intimidate, and control.”

His reasoning was rejected by the court.

“I don’t buy that argument at all,” Messitte said from the bench. “As a matter of law, I’m not prepared to say that this is not sexual.”

Almost all of the key documents in the lawsuit have been kept under seal. The Washington Post requested and was granted access by Messitte to the first federal hearing in the case on July 1 when the school system addressed Title IX.

“I think that argument is deplorable,” Timothy Maloney, one of the attorneys representing victims’ families, said in court, adding that the attackers’ motives shouldn’t define what happened to the victims. “This was rape and rape is always sexual assault and rape always implicates Title IX.”

The legal strategy didn’t sit well with the victims’ parents either.

“For the county attorney to even begin to suggest that this attack had nothing to do with a sex-related crime is outrageous,” said the father of one victim, who spoke on the condition of anonymity after the hearing to protect the identity of his son.

Earlier coverage: How a locker room attack roiled a football-proud town

The civil case against the school system follows separate criminal proceedings that began in the fall of 2018 in Montgomery County Circuit Court.

Four junior varsity football players, all 15 years old, were indicted as adults on one count each of first-degree rape and three counts each of attempted first-degree rape. In a series of hearings in 2019, a judge moved their cases to juvenile court, where at least two of the teens pleaded to reduced counts of second-degree rape and attempted second-degree rape, according to three people familiar with the outcome of the juvenile court hearings, which were closed to the public. The people who spoke to The Post after learning the outcome did so on the condition of anonymity because they weren’t authorized to speak. The exact dispositions of the other two teens could not be learned.

In Maryland, the crimes of first-degree rape and second-degree rape cover a range of nonconsensual acts that can involve the use of an object. The four victims in the Damascus case, also members of the JV football squad, were 14 and 15 years old.

Gboyinde Onijala, a spokeswoman for Montgomery County’s public schools, said their attorney’s arguments at the July 1 hearing were “purely legal” and “confined to the legal requirements to state a cause of action under Title IX.”

The comments in court, she said, are unrelated to how the system handles issues that may arise in schools.

“Claims of sexual harassment or assault are taken seriously and processed pursuant to BOE [Board of Education] policies, which do not contain any reference to ‘sexual desire,’ ” Onijala said.

School system policies mandate staff training on sexual harassment and sexual assault, and student instruction on sexual harassment and body safety — requirements that are monitored by Title IX coordinators, Onijala said.

The spokeswoman said that because the litigation is pending, and much of it remains under seal, she couldn’t comment on “the facts surrounding the incident at Damascus High School or the merits of the case.”

Defense attorneys who represented the four boys charged in the case all declined to comment. During hearings in 2019, Montgomery County Circuit Court Judge Steven Salant said the boys didn’t seem to grasp the seriousness of the attacks — having described them as a prank or some kind of team-building exercise.

At least one teenager who was charged in the attack later had a change of heart, Salant said, reading aloud a statement the teen had made during the investigation: “At the time I did not feel it was sexual abuse, but now I know it is.”

Prosecutors in the case declined to comment on the litigation. But in previous court hearings, they repeatedly described the attacks as vicious sexual assaults.

Earlier coverage: Criminal cases wind down for teens in locker room attack

The afternoon of Oct. 31, 2018, as junior varsity players were getting ready for the season’s last day of practice, the lights in the freshman locker room suddenly went dark. The single entrance was guarded, and four players set upon their teammates, according to prosecutors’ statements. The assailants pulled down the pants of one boy and pushed the broom handle several times through his underwear and into him while he screamed, prosecutors said. Two other boys were pinned and jabbed in their buttocks with the handle, and teammates knocked the fourth victim to the ground and stomped on him as he fought off the broom.

Salant described statements written by victims as heartbreaking. One of the boys who was attacked transferred to a new school. Another who remained at Damascus High wrote that he was left feeling that everyone saw him differently: “I’m the kid who got the broom.”

The attacks drew extensive community concern and media interest, in part because the Damascus program has long been a football powerhouse. In the fall of 2018, the varsity squad’s winning streak topped 50 games, including state championships. The junior varsity squad also was dominant.

Attorneys for the victims’ families originally filed their lawsuits in Montgomery County Circuit Court, alleging negligence under Maryland state law. But the case was moved to federal court after they made more serious accusations of negligence and claims under Title IX.

The law, established nearly 50 years ago, is intended to protect students from discrimination on the basis of sex, which can include severe forms of sexual harassment, according to Title IX experts and written opinions by federal judges. Victims must show that the harassment caused them to lose out on educational opportunities they would otherwise have received, according to the experts and opinions.

Montgomery County’s strategy mirrored that of defendants in cases out of Tennessee and Arizona that involved boys sports teams. Judges in both cases rejected the arguments, according to court filings.

“Hazing new teammates is a common practice among high school sports teams. Though much of it is lamentable, not all hazing is necessarily actionable sex discrimination,” U.S. District Judge Susan Bolton wrote in the Arizona case, which involved football players penetrating their teammates with their hands and objects. She ultimately concluded that the acts constituted “sexual humiliation as a test of one’s masculinity” and were covered by Title IX.

Damascus High returns to football field, a year after sexual assault case consumed town

In the Tennessee case, where basketball players attacked teammates with a pool cue, U.S. District Judge Harry Mattice wrote: “It is an unfortunate reality that athletic hazing, despite not being typically motivated by sexual desire, can become sexually exploitative.”

To advocates for victims of sexual assault and victims of hazing, Montgomery County’s legal strategy minimized the full picture of what happened.

“Sodomy occurs in many boys’ teams and is favored because it is the quickest way to completely humiliate a victim,” said Susan Lipkins, a psychologist and author of the book “Preventing Hazing: How Parents, Teachers, and Coaches Can Stop the Violence, Harassment, and Humiliation.” “There is no escape, and the victims’ own sexual identity is often questioned.”

Cynthia Simonson, president of the Montgomery County Council of PTAs, which represents parents in almost 200 schools, called the legal strategy a distraction.

“No child-focused system should be spending time and resources battling definitions when it comes to the abuse of young people,” she said. “Time and resources should focus solely on repairing harm, making whole, holding to account, and establishing protocols and practices that ensure the protection of all children from all forms of abuse.”

The litigation remains in relatively early stages. And school system lawyers will get other chances to knock out the claims before any trial would take place.

Title IX does not mandate that schools prevent every instance of sexual harassment or sexual assault, but when a school learns of potential sexual harassment in its programs, it must respond in a manner that is not “deliberately indifferent,” according to Josh Richards, a Philadelphia-based education attorney at Saul Ewing Arnstein & Lehr who has handled dozens of Title IX cases around the country.

Speaking for the Damascus victims’ families at the July hearing, Maloney asserted that there were at least seven previous instances of “locker room sexual violence,” including five at Damascus, before the 2018 attacks. Even so, Maloney said, the school didn’t tighten locker room supervision or insist its football coaches take training designed to guard against such attacks.

“Nothing happened,” Maloney said. “No remedial action, complete indifference.”

O’Hara said that before the 2018 assaults, only one of the alleged incidents at Damascus was reported to school officials. The school reported the matter to police and checked with the purported victim, who denied he’d been attacked, O’Hara said.

“It’s not that the school simply sat back and did nothing,” O’Hara said, adding that the victims’ attorneys were able to “artfully wordsmith” key points in their legal filings.

The hearing also covered another claim by the victims’ families: that one of the attackers, who had an “extensive history of sexual harassment and violence” within the school system, was allowed to stay in school and on the team — a red flag that the locker room needed to be closely monitored.

More specifically, Maloney argued that when the student transferred to Damascus at the start of the 2018 school year, an administrator from the student’s previous school warned he needed to be escorted to and from classes. The administrator even delivered a packet of documents describing previous incidents going back to middle school to her counterparts at Damascus “because she was worried about the safety of the staff and students at Damascus,” Maloney alleged.

O’Hara said that even by the plaintiffs’ own allegations, it was clear the school system tried to intervene in the student’s behavior over the years — calling his mother more than 100 times, for example. Further, O’Hara said, he’d only been at Damascus High School for about 40 days before the locker room incident.

“There was only so much time, your honor, for the school to ramp up its response as the plaintiffs might have liked,” O’Hara said.

“Well, I think you want to tell that to the jury,” the judge said. “The fact of the matter is if he’s such a menace that he should be supervised at all times, that starts with Day 1, not Day 41.”

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