A former Palo Alto elementary school volunteer and nanny who was initially accused of child molestation 23 years ago has now been charged with two counts of felony lewd and lascivious acts on a child under 14 in that case, a Santa Clara County prosecutor said.
The 1994 case against David Shwenke Tupou (aka David Tupou Schwenke), 49, who was then 36 years old, divided the Palo Alto school community: some people wanted him prosecuted and others demanded the charges be dropped against the charismatic school volunteer.
But three alleged victims from that case -- sisters in whose home Tupou lived as a nanny -- came forward again last November to press charges. After investigations by Palo Alto police and the Santa Clara County District Attorney's Office, prosecutors filed charges against Tupou in February for acts against one of the sisters.
Tupou (pronounced Too-BOH) is already serving a 67-year prison sentence for sexual-assault convictions in a 1998-1999 case involving a San Jose girl. He has been imprisoned since 2001 at the California Correctional Training Facility in Soledad, according to online prison records.
The three sisters in the Palo Alto case, now adults in their late 20s and 30s, told police they came forward again because they are concerned that since Proposition 57 passed in California, Tupou might be released from prison early and they don't want him to harm on anyone else. In addition, one of the sisters, designated as Victim 1 in the November police report, said she is now a parent and wanted to make sure she did the right thing.
Last fall, the San Jose sex-abuse survivor contacted one of the sisters through Facebook and reportedly told her Tupou referred to the three Palo Alto victims by their names while she was being abused.
The alleged abuse in Palo Alto took place from 1991 to 1995 when the girls were between the ages of 4 and 12 years old. Victim 1 was allegedly abused between ages 4 and 8; Victim 2 was 6 to 10 years old and Victim 3 was 8 to 12 years old, according to the police report.
Tupou allegedly used "force or fear," coercion and threats to get the girls to cooperate, including hanging their baby brother out of a window and threatening to drop him if they did not cooperate. The girls thought it was "a small price to pay" to keep their brother from being dropped off the balcony, they told police.
The alleged abuse included kissing, photographing them naked, having them watch provocative videos, playing "strip poker"-type games and touching their bodies or having them touch his, according to the police report. A witness who was friends with Victim 1 has also corroborated parts of what the sisters described, according to the police report.
Tupou had a considerable history in Palo Alto schools. He worked for the Palo Alto Unified School District in 1991-1992 as a language tutor, according to previous Weekly news reports. He volunteered in at least five Palo Alto schools in 1993-1994 including Hoover, Juana Briones, El Carmelo, Addison and Walter Hays elementary schools, mostly in kindergarten classes. He also volunteered at the Palo Alto Children's Theatre.
Principals at Hoover and El Carmelo asked Tupou to discontinue volunteering after multiple parents expressed concern over his too-intimate behavior with their children, which included excessive tickling, according to Weekly news reports at the time.
In fall 1994 a parent reported to police that Victim 1 told her daughter how she had been sexually abused by Tupou. He was then arrested and charged on Oct. 19, 1994, with two counts of child molestation. The charges were reduced to annoying a child after the three sisters would not testify against him. Tupou was required to take sensitivity training and the charges were dropped, according to court documents and news reports.
One of the sisters did give police a detailed account of Tupou's alleged sexual touching, according to the 1994 police report. But the children were allegedly instructed by their mother to later lie so there would not be any consequence to Tupou because he was "family," they told police in November.
The reasons why their mother allegedly protected Tupou are not discussed in the police narrative. But Victims 1 and 3 said their mother made it clear -- at one point during a kitchen-table meeting with Tupou present -- that it was not something they should talk about, according to the police report. The mother allegedly told the children that the account Victim 1 had given to police was "mistaken."
The sisters now say they were not given a fair chance in the 1990s to prosecute Tupou because they were minors who were instructed by a parent to lie to police, they said in the 2016 police report.
They could still get their day in court. California does have statutes of limitation on sexual-abuse cases, but there are exceptions that can extend the statute by a year from the time the victim reports the crime, Deputy District Attorney Pinaki Chakravorty said. Adults who report a substantial sexual assault that occurred when they were children can still see charges filed against their alleged abusers many years later.
In the Tupou case, California Penal Code section 803 (f) applies if there was "substantial sexual conduct." Oral copulation, penetration of a victim or the offender or masturbation of either the victim or offender are examples of such conduct. Corroborating evidence of the victim's allegations is also required for a statute of limitations extension to apply, Chakravorty said.
Tupou was booked into the Santa Clara County Main Jail on April 4 where he will remain while his case proceeds. He is being held without bail. He has pleaded not guilty, Chakravorty said. He is scheduled for a preliminary hearing on the charges on Sept. 25 in Santa Clara County Superior Court in Palo Alto. He is currently considering hiring a private attorney, according to court documents.
Upon resolution of his case, whether he is convicted or not, he will be returned to state prison to continue serving his sentence for the conviction in the San Jose case, according to court documents.