Ohio County Prosecutor Scott Smith Mum on Possible Charges Against Former Teacher Accused of Abusing Student

WHEELING -- It is unclear whether criminal charges will be pursued against a former Ohio County teacher accused of sexually abusing a student for more than 15 years.

A civil lawsuit filed this week on behalf of Marshall County resident Christopher Birch, now 28, alleges his former teacher, guardian and girlfriend Elizabeth Harbert sexually abused him from the time he was in eighth grade. The first of their four children was born when he was still in high school.

Ohio County Prosecutor Scott Smith was tight-lipped Friday when asked whether he intends to pursue criminal action against Harbert.

"I don't have anything to say yet. There's nothing to report at this time," he said.

Attorneys representing Birch are Teresa Toriseva and Shari McPhail of Wheeling.

"Whether to arrest and prosecute Harbert for any crime is a decision within the discretion of the prosecuting attorney and/or law enforcement," Toriseva said Friday. "Only they can answer this question."

The statute of limitations on statutory rape as alleged in the civil lawsuit can vary, she explained. "The statute of limitations varies for each type of claim within the complaint -- from two years of discovery to four years to possibly up to 20 years for minors or those who may be mentally unable to prosecute their claim."

She said what is more important in the case is that employees of Ohio County Schools received reports that Birch was being sexually abused by Harbert but failed to properly follow up on them or report the situation to state officials.

The suit names as defendants not just Harbert, but the Ohio County Board of Education and former Wheeling Park High School Principal Christine Carder, also a member of the current board of education.

"The key in this case is that the defendants are alleged to have fraudulently concealed facts and purposefully obstructed the prosecution of the civil claims of this student who is now a man," Toriseva said. "In such cases, the statute of limitations begins to run when the fraud and concealment and harmful conduct ends.

"Here, the complaint alleges the harm was continuous for a decade and a half, and it also alleges the coverup continues to this day," she said.