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Key Points
- A man initially charged with raping a disabled teen was allowed to plead to lesser charges, highlighting difficulties in prosecuting abuse cases involving people with disabilities.
- Legal experts say victims' communication abilities make it hard to secure convictions in criminal cases.
- A separate civil lawsuit has been filed against Haile Baird after Red Clay school district settled its lawsuit over allowing the girl to wander off campus.
A 55-year-old man first charged with raping a 14-year-old girl with disabilities after she wandered from school in 2024 was allowed to plea to lesser charges, with prosecutors recommending probation for his crimes.
Haile O. Baird's December plea came about a month after the final case against three Smyrna Elementary School employees, charged with what police called a "pattern of troubling behavior" of abuse and neglect against special needs students, ended with a sentence of probation – the second outcome in that case to end this way. Charges against the third Smyrna employee were dismissed shortly after the case's 2024 filing.
While these case outcomes may appear lenient, experts say they are not uncommon and serve as examples of the difficulty in prosecuting people accused of abusing the disabled. Only 3% of sexual abuse cases involving people with disabilities are ever prosecuted and convicted, estimates the Special Needs Alliance, an organization of attorneys that specialize in disability and public benefits law.
Legal experts point to several reasons for that: the United States' adversarial trial system; the Bill of Rights; and a victim's ability to explain what happened at trial. In both of the Delaware abuse cases, the state Department of Justice said the children had disabilities that would have made it difficult for them to testify.
"The ability to communicate is critical in an adversarial system," said William W. Erhart, a Delaware elder law attorney and a member of the Special Needs Alliance. "Articulate people prevail. Those who communicate poorly do not."
Erhart, a former Delaware prosecutor, said the philosophy over the years has been to get even a small conviction rather than letting someone get off with nothing.
"The convict, even of a minor offense, knows there is a record and that is felt to be a deterrent," he said. "If convicted in the future, then the criminal will not be treated lightly, as it is a second offense, even if the first conviction is minor."
Catherine B. "Kylee" Read, also a Delaware elder law attorney and a member of the Special Needs Alliance, said more inclusion is needed in the criminal justice space. This would include creating comprehensive, community-based programs that create and build relationships between the criminal justice system and disability communities.
"Basically better training for law enforcement and the criminal justice system as a whole, for meeting these people where they are, understanding them and communicating with them and treating them appropriately for the different situations," Read said, adding individuals can also do their part by building support around these people to legally protect them.
Another solution is to depend more on civil litigation – the other system of justice. Erhart pointed out how the civil justice system frequently starts out by putting a defendant on the witness stand and forcing them to explain – an ability not available in the criminal justice system.
"You know, they couldn't convict O.J. Simpson," he said referring to the former NFL star's charges of killing two people including his ex-wife. "But they wound up taking his house away from him, auctioning off his Heisman trophy. I mean, they really got him civilly."
Baird sued in civil court
In December, Baird was named as a co-defendant in a civil lawsuit filed against Red Clay Consolidated School District's board of education. The civil action claims the district was negligent and in breach of contract when they allowed the girl to wander from school in early 2024, eventually ending up with her being sexually assaulted.
The girl, who was not named in the civil lawsuit, had been diagnosed with several disabilities, causing the Red Clay school – Alexis I. du Pont High School – to create a series of plans. This included having a paraprofessional with the girl at all times even after school when she boarded her school bus.
But on Jan. 4, 2024, the lawsuit said the paraprofessional was not with the girl after school. Video surveillance captured her wandering around the school at dismissal, eventually leaving the school's Greenville campus and heading toward Wilmington where court documents say she was raped.
Red Clay settled the matter earlier this month, according to filings in Superior Court. The settlement was not open to the public.
Thomas S. Neuberger, one of the attorneys representing the girl, said the focus is now on Baird.
"With the school out of the way, I expect we may proceed with his default and try this child's case to a jury," Neuberger said, adding they should let the girl describe the horror as best she can. "Disabled or not, she is a citizen and can take the stand." Neuberger pointed to a 2007 example in which his team got a $41 million dollar jury award for Navy Cmdr. Ken Whitwell when Rev. Edward Smith defaulted and did not answer or defend his case. Smith, who was a religion and English teacher at Archmere Academy, did not respond to Whitwell's civil lawsuit and when the Catholic priest failed to appear in court, a federal judge ruled he was in default, allowing the case to go directly to a jury to determine damages.
"I expect a Delaware jury today would make an award 19 years later of $80 million or more in her damages trial," Neuberger said. "That should send a message for the disabled and encourage them."
Baird's criminal charges
After wandering from Alexis I. du Pont High School, criminal court documents say the girl encountered two men – Baird being the second one. It's not clear who due to a heavily redacted court document but records indicate one of the men told the girl he would drive her home if she had sex with him. When the girl told the man she was too young, the man "insisted for her to try."
"Throughout the incident, [the girl] reported that she was uncomfortable and scared," according to court documents.
A Wilmington police officer found the girl and two men about 12:35 a.m. on Jan. 5, 2024, in a parking lot, according to civil and criminal documents.
At Baird's Jan. 23 sentencing, his attorney, Darryl Rago, said the girl initially provided comments to police indicating everything was fine. When police spoke to the girl at a Royal Farms, Rago said she stated Baird was helping her get home. When the girl was asked by an officer if she'd been hurt, she said no.
"And that's on video," Rago said.
Baird, who court documents said was in the driver's seat, and the other man, John L. Butler, who was in the front passenger seat, were indicted on charges of second degree rape and unlawful sexual contact. Baird was also indicted on sexual solicitation of a child.
Butler's charges were dismissed months after being indicted, but Baird's case moved forward until December when he was allowed to plead to reckless endangerment, a felony, and sexual harassment, a misdemeanor.
In exchange for the plea, prosecutors dropped the rape and sexual solicitation of a child charges and recommended he receive probation. At Baird's January sentencing hearing, Prosecutor Nichole Warner explained part of the reason for dismissing the more serious crimes was because a Delaware State Police investigator did not have a warrant to collect Baird's pants, which had DNA on them. In turn, the pants could not be used as evidence.
Also, because of the girl's severe disability, Warner said prosecutors concluded it would be difficult for the child to testify at trial — this despite criminal court documents saying the girl, during an interview, was able "to accurately identify areas of the body in which she referred to as private parts, vagina, hand, and mouth."
Probation rejected by judge
For Stephen J. Neuberger, one of the attorneys representing the girl in the civil lawsuit, the justice system too often fails to provide "reasonable accommodations" for those with disabilities, he said, seeing them as "just an inconvenience to be dodged, or just simply ignored, because it takes too much effort and time away from work they think is more important."
But to that disabled sexual abuse survivor, he said, a rape upends their entire world.
"It's not asking too much to give them the chance to express it in whatever way their disabilities allow," Stephen Neuberger said. "They didn't ask to be disabled. They didn't ask to be raped. They are just dealing with the hand life dealt them. Giving them the equal opportunity to seek justice isn't asking too much.
"Even dysfunctional D.C. agrees on that," he said referencing how 36 years ago, more than 90% of Congress agreed on something when they enacted the Americans with Disabilities Act to try to provide the disabled with the equal opportunity to seek justice in situations where the very nature of their disabilities prevents equal treatment by the criminal and civil court systems.
Despite prosecutor's recommendation for probation, Superior Court Judge Kathleen M. Vavala sentenced Baird to three years and 30 days in prison, telling the man that part of pleading to sexual harassment meant he was acknowledging he tried to get the girl to submit to sexual acts.
Challenges in prosecuting, how to help
So what makes the criminal justice system so difficult for adjudicating these cases?
Unlike most countries, where the criminal justice system is inquisitorial, the U.S. has an adversarial system. The main difference between an adversarial system and the inquisitorial system is what roles judges play.
In an adversarial system, a judge manages the proceedings, letting prosecutors and defense attorneys argue it out in court, while in an inquisitorial systems, judges have a larger role, including collecting evidence and investigating procedures. The inquisitorial model, Aamna Aslam wrote in Bolch Judicial Institute at Duke Law, emphasizes truth-seeking and efficiency over an adversarial contest and is less dependent on the skill and resources of lawyers.
There is also the Bill of Rights, which are cherished throughout the nation but make it difficult for the government to go after people. For example, the Fourth Amendment protects against improper search and seizures; the Fifth Amendment gives a criminal defendant the right against self-incrimination; and the Sixth Amendment means a unanimous jury is needed to find someone guilty beyond a reasonable doubt.
"All of this is designed to make it hard to convict those accused of crimes," Erhart said. "And in criminal procedure, if the state cannot show it has a case after it concludes its evidence, the defense can ask for a dismissal even before it has to decide to offer evidence in a defense."
To help protect this population before anything happens, individuals need to have supports shielding them from not only physical abuse but from such things like financial exploitation to being cared for well at home. Read provided three things people should do.
"Number one, let them know that you are watching," she said.
This includes finding out the camera policies of institutions where your child or loved one is going, whether it's school, group home or even a van trip. Have unannounced visits, know the names of everyone involved, come around, advocate, and ask questions.
"Any good place is not going to be upset with questions about the safety of your loved ones," she said. "They are appropriate requests and regarding sensitive situations."
Read also recommended having legal documents in place for people coming of age, such as financial and/or healthcare powers of attorney and if necessary, guardianship and trusts. These documents will help insulate vulnerable people from bad-doers wanting to cause harm.
Read added these legal structures are available for those with lower incomes at such places as the Community Legal Aid Society.
Third, Read said parents can go to whatever school or program their loved one is in and ask them to provide the sexual training program: "The good touch, bad touch conversation."
"If they do not have the program, you have thereby raised a good question, which everyone acknowledges is a good question," she said. "It will prompt action."
Send tips or story ideas to Esteban Parra at (302) 324-2299 or eparra@delawareonline.com
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