Friday, Aug. 15, 2008

Richland teacher faces 1 less misconduct charge

Kristin M. Kraemer, Herald staff writer

A Superior Court judge ruled it was not a crime for teacher Allan Eve to have sex with an 18-year-old student because the law is too vague.

That decision, issued this week by Judge Dennis Yule, means one of three counts against Eve for alleged inappropriate contact with female students at Richland High School will be dismissed.

The former music teacher was charged with having sex weekly with a student in the school's band supply room, a six-month relationship his attorney described as sexual intimacy between "two consenting adults."

Since the law for first-degree sexual misconduct against a minor does not clearly define "minor" and only uses the phrase "at least 16 years of age," Yule said in his written decision, it "must be construed to apply only when a registered student is 16 or 17 years of age."

Benton County prosecutors think Yule came to the wrong conclusion.

"We disagree with his decision and it is our understanding that the Washington Association of Prosecuting Attorneys is looking toward a legislative fix," said Deputy Prosecutor Adrienne Farabee.

Tom McBride, executive secretary for the state association, said he believes the Washington Legislature "expressly intended" to cover registered students who are over 18 when the law was revised.

Otherwise, he asked why the Legislature would have adopted the changes to a statute designed to hold school employees accountable for abusing a supervisory relationship.

"It's not too much to expect teachers to keep their hands off of kids," said McBride, who lobbies during the legislative session for the county prosecutors.

Farabee wants to talk with the student's family first before deciding if she'll ask the Washington state Court of Appeals Division 3 to review Yule's ruling.

Meanwhile, she will continue prosecuting Eve, 58, on one count each of communication with a minor for immoral purposes and fourth-degree assault with sexual motivation. His trial is scheduled Oct. 13.

In those charges, he is accused of sending anonymous suggestive notes to another female student and making a third student "feel uncomfortable" by massaging her hand and telling her how lucky her boyfriend was.

Eve had been a teacher with the Richland School District for nearly 36 years before resigning in October. The district already had started a personnel investigation into the high school's director of instrumental music.

Eve was arrested at home in November by Richland police.

Prosecutors alleged that Eve slipped notes "of a sexual nature" in the girl's school locker, then started having sexual relations which continued after she graduated.

Under state law, school employees can be charged with first-degree sexual misconduct, a felony, if they have sex with a registered student who is at least 16. The employee must be five years older than the student and not married to them.

Lawyer Jim Egan argued before Yule last month that his client should have been allowed to have a relationship with an adult without the government's intervention.

"Sexual intimacy is such a private, personal affair between citizens," he told the court.

Thursday, Egan agreed with the outcome of Yule's decision to dismiss "on the basis that the legislative language is written in such a way that you can't tell if it means students over the ages of 18 or under 18."

Egan, who was in Minneapolis, said he has not read the decision because he is traveling across the country.

"I think that is a correct ruling under the law," he told the Herald. "... What we do in this country is we don't let judges make the law. We don't let the popular majority make the law. The law is written down, and after it's written down you follow what is written down."

If the judge "can't make out what it means," he often will rule in favor of the defendant. Egan said.

That's what Yule did in this case, citing the "rule of lenity" because he found there are two reasonable interpretations of the statute.

A similar case in Grays Harbor County is being considered by the state Court of Appeals Division 2.

In that case, a choir teacher is accused of having sex with an 18-year-old female student.

The defense is challenging the statute by saying a student who is 18 is not considered a minor, so a teacher can't be charged with sexual misconduct with a minor. The statute is ambiguous as to whether the law was intended to criminalize behavior with students who are adults, Egan said.

The issue now goes to the appeals court after the defense disagreed with a Grays Harbor judge's ruling that found students still can be a victim of the crime as long as he or she is registered in the school.

Arguments in the Grays Harbor Superior Court case are scheduled Sept. 9 in Tacoma.

But no matter the opinion reached in that case, Egan expects it to go to the state Supreme Court for review.

Farabee, who also is watching that case, said she has 30 days to file a notice of appeal of Yule's ruling after the other charges against Eve are resolved. With the trial set for mid-October, that gives Farabee until November to determine her next move on the sex charge.