F.S.; willfully neglected his official duties in violation of 231.36(6) F.S.; and engaged in sexual intercourse with Judy Ann Ewerling, a minor under the age of eighteen by using his official authority over the victim to coerce her to submit to sexual intercourse in violation of 794.011(4)(e) F.S. and for immorality in violation of 231.36(6) F.S. Two witnesses were called by Petitioner and Respondent testified in his own behalf. Respondent stipulated that at all times material herein he was employed by the Dade County School Board at Palmetto Senior High School as a member of the faculty. Respondent denied each and every allegation against him, testified that he signed out for his absence from the school contrary to the school principal's testimony that when he examined the sign-out sheet shortly after the incident Respondent's name did not appear thereon. The only facts not disputed by Respondent were that he drove the complaining witness to his residence, spent nearly two hours there with her, and then drove her home. From the directly conflicting evidence the following is submitted.
On May 16, 1975 Respondent was employed by the Dade County School Board on a continuing contract as a guidance counsellor at Palmetto Senior High School.
Judith Anne Ewerling (Judy) was a student at Palmetto Senior High School and was one of some 450 students assigned to Humphrey for counselling.
Judy was born in January, 1958 and at the time of the alleged incident was less than 18 years of age.
On May 16, 1975, Judy arrived at school on the school bus around 12 o'clock noon in plenty of time for her first class which commenced around 12:15
p.m. However, she went with a friend to a nearby McDonalds for french fries and a coke and upon her return she was late for this class and had to go to Respondent's office to sign in as late for class. While there Respondent asked her if she would have lunch with him later, to which she agreed. Although this is denied by Respondent he did pick her up shortly before three o'clock at a place about one and one half blocks from school and drove her to his residence.
Judy had held numerous counselling sessions with Respondent prior to May 16, 1975 and had done work for Respondent arranging schedules.
Respondent did not sign out, as required, for his departure from the school grounds.
The difference between Respondent's telling of the events leading to his picking Judy up and the story told by Judy is relevant only insofar as it sheds light on the testimony respecting the events which occurred when they arrived at Respondent's residence.
Upon their arrival Respondent invited Judy into the house, locked the door, turned on music, offered her marijuana, and something alcoholic to drink which were declined, and after a few minutes in another room of the house presumably looking for and/or completing the application Respondent testified he came home to pick up, Respondent led Judy into his stereo room where she was fondled and told she was going to be ravished and "he was going to screw hell out of her". He then led her to the bedroom where he undressed her, then himself, pushed her down on the bed and had sexual intercourse with her. Upon completion he went into the bathroom. While he was there Judy put on her underclothes. Upon his return he took off the bra and panties she had on and attempted to have intercourse with her a second time. He was unable to do so, and an hour or so later while driving her home asked if he could have a rain check.
Judy did not offer any particular resistance to Respondent's advances. Her reason given was that she was afraid and didn't think any neighbors could hear her if she screamed. Respondent, shortly before five o'clock p.m., drove Judy to her home and enroute obtained her phone number. Upon reaching her home Judy got out of the car and Humphrey departed. She immediately told a friend that she had been raped by Humphrey. She was driven to the place her mother works, the police were notified, and she was taken to the rape treatment center at Jackson Memorial Hospital.
At the hospital a vaginal wash was done and thereafter when a sperm test was made, sperm was not found in her vagina. However, male sperm was found on her underpants.
Respondent, after dropping Judy at her house, drove to the school, picked up a pay check and returned to his house.
The following day, Saturday, the police visited Respondent's home to interrogate him and when the police officer advised Respondent, who was unknown to police, that they wanted to talk to Humphrey about assault and battery Respondent advised the officer that Humphrey was not at home.
On Sunday Respondent called Judy twice but did not reach her. When he called again on Monday Respondent was advised by the person answering the phone that he would have to talk to Judy's mother.
On Wednesday and Thursday Respondent was interrogated by the police. He was arrested on Thursday and charged with sexual battery. At his subsequent trial Respondent was acquitted.
CONCLUSIONS OF LAW
Chapter 794 F.S. relates to sexual battery and provides in pertinent part:
"(4) A person who commits sexual battery upon a person over the age of 11 years without that person's consent, under any of the following circumstances shall be guilty of a felony of the first degree. . .
(e) When the victim is older than 11 but less than 18 years of age and the offender is in a position of familial, custodial, or official authority over the victim and uses this authority to coerce the victim to submit."
The evidence was uncontradicted that Respondent was Judy's counsellor and that, on the day in which the events leading up to the charges here under consideration occurred, Judy's visit to his office was due to Respondent's official duties. Accordingly Respondent was in a position of authority over Judy at the time in question.
The testimony of Judy, taken in the light most hostile to Respondent, is that she was afraid to resist. This was indicated to be physical fear, not fear of what Respondent could do to her in his official capacity as her counsellor. Thus the testimony regarding coercion was not that Respondent coerced the victim by use of his authority.
On the other hand, the fact that Judy reported the incident as a rape as soon as possible after its occurrence is some evidence that she was not an entirely willing participant to the events that transpired at Respondent's house.
Webster's New Collegiate Dictionary, 1975 edition defines "coerce" to mean "to restrain or dominate by nullifying individual will; to compel to an act or choice; to enforce or bring about by force or threat."
Absolutely no evidence was presented that Respondent, by virtue of his position of authority over Judy, overtly used that authority to force Judy to submit to his advances. No fear of his position of authority was ever expressed by the complaining witness. Accordingly, the evidence will not support a finding that Respondent violated Section 794.011(4)(e) F.S. above quoted.
Respondent is also charged with violating the provisions of Sections 231.36(6) and 231.44 F.S. The former section provides in pertinent part that any member of the instructional staff [of the school system]:
"May be suspended or dismissed at any time during the school year [after being charged and given opportunity for public hearing upon charges] based on immorality, misconduct in office, incompetency, gross insubordination willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude."
Section 231.44 F.S. provides:
"Any member of the instructional staff of any district who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his contract shall be subject to cancellation by the school board."
Among the various duties of instructional personnel as listed in
231.09 F.S. is to set an example for students. Subsection (2) of this section provides the teacher shall:
"Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate by precept and example, the principles of truth, honesty and patriotism and the practice of every Christian virtue."
By reason of their position of influence with the pupils under their tutelage, instructional personnel should maintain a high standard of morality, and insofar as their relationships with these pupils are concerned, the above quoted provision of the statutes require it. Accordingly, when Respondent met Judy outside the school premises, drove her to his home, took her inside, locked the door, remained there with her for nearly two hours during which time he had sexual intercourse with her once and attempted a second consummation, he violated the provisions of the statutes above quoted proscribing immorality and misconduct in office.
With respect to the charges of absence without leave and neglect of official duties, it is noted that both charges resulted from the one act of Respondent in leaving school. Although the sign-out sheet for the date involved could not be produced the principal's testimony that immediately following Respondent's arrest he viewed this sign-out sheet for the Friday in question and
Respondent's name did not appear thereon, is more credible than Respondent's testimony that he did sign out for this absence.
Since both charges stemmed from the same act of Respondent, they are merged for the purpose of recommending appropriate punishment.
From the foregoing it is concluded that on May 16, 1975 Respondent absented himself from without authority from the Miami Palmetto Senior High School around 3:00 o'clock p.m. and that he remained so absent until after 5:00
