MELBOURNE, Fla. – A Brevard County woman who was raped as a child in 1990 will be allowed to refile a negligence lawsuit against the City of Melbourne after a judge agreed with the city’s request to dismiss her original complaint.
During a court hearing Tuesday, Circuit Court Judge Scott Blaue dismissed the original lawsuit filed by Elizabeth Bradshaw that accused the city’s police department of mishandling the decades-old sexual battery investigation.
But the judge gave Bradshaw’s attorney 30 days to file an amended complaint.
Bradshaw was 11 years old when she claims a family acquaintance snuck into the bedroom of her Melbourne home and raped her.
[WATCH: Child rape victim sues city of Melbourne, accuses police of negligence]
Although Bradshaw identified the man by name in 1990, law-enforcement records indicate that detectives did not question him at the time, and he was never arrested.
Bradshaw recently learned that physical evidence collected by police on the night of the attack, including a rape kit and her semen-stained nightgown, had been “disposed” and is no longer available to prosecutors.
“The perpetrator will never face criminal charges or civil litigation for the Plaintiff’s rape because of negligence of the Defendant’s police department,” Bradshaw’s attorney Damon M. Baxley wrote in the original complaint, filed May 12.
Although the lawsuit was filed under the initials “E.B.” to protect the plaintiff’s identity, Bradshaw publicly identified herself as the rape victim in a 2023 interview with News 6.
An attorney for the city of Melbourne said what happened to Bradshaw is “abhorrent and tragic,” but claimed the city is not liable as it seeks to dismiss her lawsuit.
“Since being alerted to this matter in 2022, the Melbourne Police Department has put significant resources into thoroughly investigating and auditing how the prior investigation was administered, and to continue to pursue justice,” Melbourne Police Chief David Gillespie told News 6 in response to Bradshaw’s lawsuit. “The City remains sympathetic to Ms. Bradshaw’s claims, but respectfully will not comment further on an active litigation matter. The City and Melbourne Police Department are committed to serving the community with excellence and humility.”
In November 1990, records show Melbourne police responded to the home Bradshaw shared with her single mother.
The 11-year-old told investigators she had been awakened in her bed by a family acquaintance lying on top of her.
Bradshaw said the man sexually battered her for five to 10 minutes before leaving through the front door.
News 6 is not identifying the man, who still lives in Brevard County, because prosecutors have never charged him with the crime.
As investigators photographed the crime scene and collected Bradshaw’s clothing and bedding, records indicate an officer transported the 11-year-old to the emergency room, where she underwent a sexual assault forensic exam, commonly known as a rape kit.
[WATCH: Destroyed police evidence in Florida rape case leaves victim seeking answers]
Months after the attack, Bradshaw said she was informed the family acquaintance had committed suicide.
“My mom told me that my rapist killed himself,” Bradshaw said in a 2023 interview with News 6. “I had no reason not to believe her.”
Bradshaw’s lawsuit alleges that an unidentified member of the Melbourne Police Department told her family that the perpetrator had died, but in October 2022, she discovered her alleged attacker was still alive when she said she came face-to-face with him inside a Brevard County gas station.
“I hadn’t seen him in over 30 years, and I knew who he was. My whole body just kind of froze,” said Bradshaw. “I was crying, and I kept trying to tell myself he was dead.”
Bradshaw immediately contacted the Melbourne Police Department, which informed her the agency had disposed of all the physical evidence and most of the paperwork related to the 1990 child rape investigation.
Police officials gave Bradshaw a copy of the initial incident report that noted “the suspect was not located or contacted.”
The agency also found a Florida Department of Law Enforcement crime lab report confirming semen had been detected on vaginal swabs collected from Bradshaw at the hospital on the night of the rape. The nightgown and underwear Bradshaw had been wearing were also stained with semen, the lab report showed.
“It says right there in black and white, ’11-year-old little girl covered in sperm.’ I could not have done that to myself,” Bradshaw told News 6. “And they did nothing.”
Melbourne Police located a “chain of custody” log that indicates FDLE returned the physical evidence to the agency in October 1991, nearly one year after the reported rape, but police could not find the items in the department’s evidence storage room or other facilities.
The agency later conducted an internal audit but was unable to determine why the evidence was destroyed, who authorized the disposal, and when it occurred, records obtained by News 6 showed.
In November 2022, after discovering her alleged rapist was still alive, Bradshaw said she made a “controlled call” to the man using her personal cell phone as a detective with the Melbourne Police Department listened for a confession or admission.
During the call, Bradshaw had a severe emotional outburst and yelled at the alleged perpetrator while asking why he raped her, the lawsuit states.
The man refused to speak to Bradshaw and hung up, records show.
Bradshaw immediately experienced nausea, shortness of breath, and other physical ailments “after being forced to speak with the perpetrator, knowing that the Defendant’s employees had now provided the perpetrators with (Bradshaw’s) personal cell phone number,” the lawsuit alleges.
When detectives later confronted the man in his Brevard County mobile home community, he claimed he did not know Bradshaw and adamantly denied raping her when she was a child.
“I know I would never do that,” the man told detectives before declining to speak further without an attorney present. “I don’t know how I ended up there, if I ended up there.”
Although there is no statute of limitations in Florida for sexually battering a child under the age of 12, prosecutors told Bradshaw they cannot file criminal charges against her alleged rapist, in part because there is no longer any physical evidence that can be subjected to modern DNA testing and presented at trial.
“(Bradshaw’s) severe emotional response to the (city of Melbourne’s) mishandling of the rape case caused (Bradshaw) to seek mental health counseling, to be prescribed psychotropic medication, and contributed to (Bradshaw’s) post-traumatic stress disorder (PTSD) diagnosis,” her lawsuit claims.
The city of Melbourne filed a motion seeking to dismiss Bradshaw’s lawsuit.
“(While) what happened to Plaintiff is abhorrent and tragic, there is no legal basis upon which to seek recovery as against the City,” attorney Patricia M. Rego Chapman argued on behalf of the city of Melbourne.
“(The) Florida Supreme Court has long held that governmental entities owe no duty to provide police or security protection to specific individuals in the absence of a special relationship,” the city’s motion to dismiss states. “At the core of the Plaintiff’s claim is that she was the victim of a horrible crime 35 years ago, it was reported, and the suspect was never prosecuted; this is what Plaintiff alleges caused her distress. However, the reporting of a crime does not create a special relationship sufficient to find a duty owed.”
Bradshaw’s attorney asserted that Melbourne police owed a special duty to protect Bradshaw from harm when the agency enlisted her to make a controlled phone call to the suspected rapist.
The city of Melbourne also argued that it is entitled to sovereign immunity, which generally shields government entities from lawsuits. In certain types of injury cases where sovereign immunity is waived, damages are capped at a maximum of $300,000.
Bradshaw’s complaint demanding a jury trial did not specify the damages she was seeking.
“There is simply no viable cause of action against the City of Melbourne that could ever be brought,” Chapman said during Tuesday’s court hearing shortly before the judge agreed to dismiss Bradshaw’s lawsuit.
Baxley indicated he would be re-filing an amended complaint within 30 days.
“Everything was destroyed while it was in the confines of the police department. So there is nobody else to blame here,” Baxley said during Tuesday’s hearing. “It is strictly the police department.”