In Aurora Teacher Sex Abuse Case, Court of Appeals Dismisses Charges against 2 Employees

By Michael Karlik
Colorado Politics
July 9, 2020

https://www.coloradopolitics.com/news/in-aurora-teacher-sex-abuse-case-court-of-appeals-dismisses-charges-against-2-employees/article_c6e726c2-c219-11ea-950f-bf4f7cc022b5.html

Two separate panels of the Colorado Court of Appeals both concluded that the statute of limitations for failing to report child abuse begins when a party who is required to report first learns of the abuse and does not immediately notify authorities.

“In the absence of clear legislative intent, we must conclude that failure to report is not a continuing offense,” wrote Judge Jaclyn Casey Brown, “and that the statute of limitations begins to run when a mandatory reporter has reason to know or suspect child abuse or neglect but willfully fails to make an immediate report.”

18th Judicial District Attorney George Brauchler, whose office brought the charges, said on Thursday he was frustrated that two former school employees in the Cherry Creek School District would face no legal consequences for allegedly talking a minor out of her sex assault accusation.

“My god, man, to be able to walk away from this scot-free, what do you say to the victims? ‘Oops, sorry we didn’t do what we were supposed to do?’” he said.

A female student at Prairie Middle School in Aurora allegedly told another student in 2013 that she had a sexual relationship with teacher Brian Vasquez when she was 14 years old. The disclosure made its way to the school’s dean, who supposedly asked the girl to reconsider her story due to the consequences it could have for Vasquez.

Prosecutors further claimed that David Gonzales, who was then the principal, met with the girl and conveyed a similar message. The student subsequently retracted the accusation of abuse.

Colorado law designates certain individuals who must immediately report to law enforcement or the child abuse hotline if they know or reasonably suspect the abuse and neglect of a child. More than 40 types of professions are mandatory reporters, including physicians, clergy and school employees. Failing to report is a misdemeanor punishable by fines and a prison sentence.

Vasquez confessed in August 2017 to sexually abusing multiple students and ultimately received a prison sentence of 40 years to life. But the cases before the Court of Appeals arose from the rulings of Arapahoe County Court Judge Cheryl Rowles-Stokes. Prosecutors charged Gonzales and the dean, Adrienne Macintosh, with failing to report. Both defendants claimed to not remember the student’s disclosure, and Macintosh told a grand jury that she deemed it her responsibility to investigate any allegations.

The statute of limitations for the offense is 18 months, and the defense moved to dismiss the cases because the window for prosecution would have closed in 2014. Prosecutors countered that the statute of limitations began only after law enforcement discovered Gonzales and Macintosh failed to report. Rowles-Stokes denied the motions, but the defense appealed to District Court Judge Stephen J. Schapanski, who reversed her decision and threw out the cases.

At the time, a lawyer for Gonzales told The Denver Post that his client was a "scapegoat" for the actions of Vasquez. "The statute of limitations did its job — it kept an innocent person innocent," said David Beller of Recht Kornfeld PC.

Writing for the three-member panel in the Gonzales case, Brown explained that this was not an instance of a “continuing offense,” in which the statute of limitations does not take effect so long as the crime is being committed. While Rowles-Stokes contended that an individual violates the law for each day that passes during which they have knowledge of the abuse without reporting it, Gonzales argued that the violation occurs only once — when the mandatory reporter first learns of the abuse and does not immediately report.

“[B]ecause ‘immediately’ is not defined in the statute, it is unclear to us what the ‘measurable unit’ of the crime is,” Brown wrote. “How many seconds, minutes, hours, or days must pass between the mandatory reporter’s receipt of information from which he has cause to know or suspect child abuse and his report of that information for a violation of the statute to occur?”

For the Gonzales appeals panel, the law was unclear whether there was an ongoing obligation for him to report, even if he neglected to do so immediately. The General Assembly provided no clear direction, with the court noting that legislators added the word “immediately” in 1975 without clarifying how long the obligation lasts. Ultimately, the judges concluded that never allowing the statute of limitations period to kick in was “absurd.”

“It could lead to circumstances where a mandatory reporter would be subject to prosecution decades after his initial failure to make an immediate report,” Brown wrote. “This would put failure to report, a class 3 misdemeanor, in a similar category to felonies such as murder and kidnapping that have no time limit for commencing prosecution.”

In the Macintosh case, the second appeals panel reached the same conclusion, although Judge Diana Terry was definitive in her opinion, saying the word “immediately” triggered the statute of limitations due to “a discrete act with a measurable unit” of time.

Both rulings upheld the Arapahoe district judge’s dismissal of the cases. Rowles-Stokes and the attorneys for Macintosh did not immediately return requests for comment.

Beller, in a statement, said that "The statute of limitations is a legal principle protecting the innocent from fading memories, inaccurate memories, or the loss of exculpatory evidence- all of which is present here. The Court of Appeals upheld the law’s purpose and protected an innocent man from a wrongful conviction. He is relieved, but his heart remains in sympathy with all the victims of the heinous acts of a teacher."

According to Illuminate Colorado, one in 10 children is sexually assaulted before they turn 18. Sen. Rhonda Fields, D-Aurora, sponsored a 2019 law doubling the length of the statute of limitations to three years. She also proposed a bill in 2018 which would have clarified that the statute of limitations for failing to report begins upon the discovery of the offense. That measure died in a Senate committee.

“The thought behind the bill is you can't have people in authority and leadership just be dismissive when someone tells them a person of trust — one of your employees — has done something. It’s not their job to investigate. Their job is to report it,” she said on Thursday. “We were trying to close that loophole. It sounds like something broke down.”

Brauchler maintained that failure to report child abuse and neglect is a continuing offense, and as such the statute of limitations should reset for each day the failure continues.

“That’s the entire point of the statute is you cannot keep these types of assaults on our children a secret. A crime born in secrecy, as long as it’s kept secret long enough, you can reach the statute of limitations,” he said.

Brauchler added that an unlimited statute of limitations, such as for murder, was not the technical outcome he was seeking. Rather, he believed the statute of limitations should begin when law enforcement is aware that mandatory reporters have hidden information.

“These two people who knew of the victimization of a child and decided they would pick their friend and colleague over that child,” he said, will consequently have no record of wrongdoing.

This story has been updated with comment from Gonzales's attorney.