Earlier this week, we published a piece about age of consent laws, those rules that criminalize voluntary sexual acts involving a minor which would otherwise be legal if not for the age of one or more of the participants. Each state has its own law about the circumstances under which young people can consent to sexual activity—some focus on the age of the potential “victim,” others the age of the “perpetrator,” and others the age difference between the two.  But what no laws seems to be able to do is distinguish between exploitative and consensual relationships between young people.  As such, these laws are open to misinterpretation and abuse which is evident in cases that send 18-year-old boys to prison and put their names on sex registries alongside serial rapists and pedophiles for having consensual sex with their 15-year-old girlfriends.

The article questioned whether we should really treat teenagers who have sex with other teenagers as criminals, if our legal system should play any role in regulating “consensual” teen sexual behavior, and if there are ways to protect teens from exploitation without making them vulnerable to unnecessary prosecution. 

Now, however, another type of law that deals with teens and sex is making national news and it raises a slew of different questions.  The Arkansas Supreme Court just ruled to overturn a state law that made it a crime for public school teachers to have sex with any student under 21. In a four-to-three decision, the court stated that the law essentially “criminalizes sexual conduct between adults.” With this decision, age once again takes center stage when the more important questions are about the relationship itself. 

The case at issue involved David Paschal a high school history teacher who was convicted at age 37 of having sex with an 18-year-old student.  Both parties agreed that the sex was consensual but it nonetheless violated a state law which says a person is guilty of second degree sexual assault if, among other things, the person “is a teacher in a public school in a grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is: (A) A student enrolled in the public school; and (B) Less than twenty-one (21) years of age.”  

In addition to sexual contact with a student, Paschal was found guilty of bribing a witness (he told another student he would give the 18-year-old $1,000 not to testify) and, in a separate case, was found guilty of serving alcohol to minors who were students at his school.  On the other side, the student involved is said to have reported the five-month affair only because she was told that Paschal was suddenly interested in another student. While we were not there and cannot know what was going in their relationship we are definitely left to wonder if it meets the criteria of being consensual, mutually pleasurable, non-exploitative, honest, and protected from pregnancy and STDs.

In its majority opinion the court focused on the age of the student who at 18 is a legal adult but I don’t see this as the most important issue.  There is a reason why 23 states (if a newly introduced law in California passes there will be 24) have dealt with student/teacher relationships outside of age of consent laws.  These laws are meant to protect the powerless from exploitation in much the same way sexual harassment laws are meant to protect employees from hostile work environments. I don’t believe the exact age of student has much bearing on the power dynamic between her and her teacher.  Whether she is 2 weeks shy of her 18th birthday or 3 months past it—at school he has power and authority and she does not. Put another way, regardless of their age or age difference, inside that building where they met he is treated as an adult and she is treated as a child. 

In the dissent, Justice Robert Brown wrote that the ruling “will cause significant disruption in our high schools and have a deleterious impact on education in general and the teacher-student dynamic in particular.”  I think this might be an overstatement as I don’t think most teachers are intent on sleeping with their students but stopped only by their fear of jail time.  Nor do I think most students are just waiting for their 18th birthday to make a move on their cute English teachers.

I, do, however, think that rules need to be in place whenever there is an inherent imbalance of power regardless of whether both parties are adults.  In much the same way a doctor should not have sex with a patient or a therapist with a client, a teacher should not have sex with a student.  I don’t really care if it’s a high school student or a graduate student—the sexual-relationship should at the very least wait until the student-teacher relationship has ended.