I’ve received a few questions lately from school administrators and educators concerning the current state of the law with regards to student-teacher relationships. Specifically, I’ve been asked if criminal charges can be filed against a teacher who has a sexual relationship with a student over the age of 18. If you remember, the Arkansas Supreme Court struck down a statute criminalizing such behavior in 2012, and since that time, there’s been a lot of misconception about what that decision really meant and how the Arkansas General Assembly addressed the issue. I thought this would be a good time to address these questions and clear up any misunderstandings that may still exist.
In 2012, the Arkansas Supreme Court issued a decision, namely Paschal v. State, 2012 Ark. 127, in which the Court ruled that a state statute that criminalized a teacher’s consensual sexual relationship with a student under the age of 21 was unconstitutional as applied. Mr. Paschal was a high school teacher that had a sexual relationship with an 18 year old student. He was convicted of four counts of second-degree sexual assault pursuant to Ark. Code Ann. § 5-14-125(a)(6), which provided at the time that “[a] person commits sexual assault in the second degree if the person [i]s a teacher in a public school in grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is [a] student enrolled in the public school and [l]ess than twenty-one (21) years of age.” Paschal challenged the constitutionality of this statute, arguing that because the student was an adult at all times during the sexual relationship and because the relationship was consensual, which the State did not dispute, the statute infringed upon his fundamental right to have a private, consensual, sexual relationship with another adult. The Arkansas Supreme Court agreed, affirming that there is a fundamental right to privacy that protects all private, consensual, noncommercial acts of sexual intimacy between two adults. The Court distinguished this statute from another that criminalized a clergy member’s use of his or her position of authority and trust over an individual to engage in a sexual relationship with that individual. The Court upheld the constitutionality of that statute in the case of Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006), in which the Court explained that the statute did not criminalize the defendant’s right to have a consensual, sexual relationship with another individual, but rather, it criminalized the defendant’s use of his position of authority and trust over the individual to engage in an unwanted sexual relationship. This was a key difference, and as the Court in Paschal pointed out, though it found Paschal’s conduct to be reprehensible, the Court could only analyze the statute as written. Paschal’s second-degree sexual assault convictions were dismissed.
After this case was handed down, many educators and parents felt that they were somewhat helpless in preventing teachers from having sexual relationships with adult students. This, however, wasn’t really the case. School districts have always had the authority to discipline or terminate teachers for inappropriate relationships with students. Paschal didn’t change this. In addition, such a relationship violates the Code of Ethics for Arkansas Educators, and teachers can face licensure suspension or termination for this conduct. Paschal dealt with criminal sanctions only, and in no way was meant to condone sexual relationships between teachers and students.
In 2013, the Arkansas General Assembly modified the statute at issue in Paschal through Act 1086 of 2013 to mirror the statute that was upheld in Talbert. Section 5-14-125(a)(6) of the Arkansas Code now provides that “[a] teacher, principal, athletic coach, or counselor in a public or private school in a grade kindergarten through twelve (K-12)” commits sexual assault in the second degree if he or she is “in a position of trust or authority, and uses his or her position of trust or authority over the victim to engage in sexual contact with a victim who is [a] student enrolled in the public or private school” and is “[l]ess than twenty-one (21) years of age.” This modification, based on the Court’s opinions in Talbert and Paschal, presumably brings the statute into compliance with the constitution, and again provides a mechanism for prosecuting teachers who have sex with their students. In theory, a purely consensual relationship between a teacher and an adult student is still protected, but it then becomes an question of fact for the jury in a criminal trial as to whether the relationship was, indeed, purely consensual or was the result of the teacher’s abuse of his trust and authority to influence the student. I’m no criminal lawyer, but I think it’s a pretty heavy burden in almost any case to persuade jurors that a teacher-student sexual relationship is not, at least in some way, the result of the teacher’s authority and influence over the student. I believe any prosecutor in this state could confidently file charges against any teacher pursuant to this new statute who has a sexual relationship with a student.
To be clear, teacher-student relationships are still criminal, are still prohibited (or should be) by school district administration, and are still highly unethical.