Saturday, Sep. 06, 2008

Washington teachers union says law on sex between teachers, students unclear

By Paula Horton, Herald staff writer

The state teachers' union says a law making it a crime for teachers to have sex with students doesn't apply to 18-year-olds.

The Washington Education Association, however, does not condone teachers having inappropriate sexual relationships with students of any age, spokesman Rich Wood said.

At question is whether the law for first-degree sexual misconduct with a minor -- which makes it a felony for a teacher to have sex with a student who is at least 16 -- includes those 18 or older.

"It's an unclear law," Wood said. "The court needs to decide or rule whether this particular law covers all students or just students who are minors."

Last month, a Benton County Superior Court judge said the law is too vague because it doesn't clearly define "minor" and only used the phrase "at least 16 years of age."

Because Judge Dennis Yule found there are two reasonable interpretations of the statute, he dismissed the charge against Allan Eve, a former Richland High School music teacher accused of having sex with an 18-year-old student.

The WEA weighed in on its interpretation of the law for a similar case in Grays Harbor County that's set to be heard Tuesday 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 challenged 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 defense appealed a Grays Harbor Superior Court ruling last year, where a judge said the law was clear and a student can be a victim of the crime even if the student is 18.

Benton County Prosecutor Andy Miller said no decision has been made on whether to appeal Yule's decision to the state Court of Appeals Division 3. Prosecutors are talking to the student's family about the decision.

Eve, 58, is charged with one count each of communication with a minor for immoral purposes and fourth-degree assault with sexual motivation for alleged inappropriate conduct with two other students. His trial is scheduled Oct. 13.

"If we appeal the case, those appeals could take up to a year," Miller said. "It's difficult for victims to move on with their life with this hanging over their head. ... It's important to know it could be put on hold for one to two years."

Miller said he doesn't think there's much doubt that the legislative intent of the law included students 18 and older.

"I think the fact that the Grays Harbor case is being appealed, the legal issue is going to be resolved by the state Supreme Court," he said.

The WEA filed a "friend of the court" brief supporting the defense's claim.

"Our position is that based on the legal reading of the law, it does not apply to students who are adults," Wood said.

Mary Shaw, president of the Kennewick Education Association, said she wasn't aware of WEA's brief. Her group hasn't discussed the case as a body, she said.

Officials from other Tri-City area teachers unions couldn't be reached Friday afternoon.

Wood said that the professional conduct code clearly says a teacher engaged in that type of behavior would lose his or her license, regardless of what the criminal law might be. And the WEA works to train and educate its members to ensure they have safe schools and safe learning environments, he said.

"I can't say strongly enough that our association and our members oppose any school employee having any inappropriate relationship with any student of any age," he said.

The teachers union took a position on the issue because "laws should be clear and this is a law that potentially could affect anybody who works in public education," Wood said.

"Filing this brief should not be construed to mean that anybody within WEA condones inappropriate sexual conduct with students," Wood said. "It would be an insult to suggest our 81,000 members would condone that kind of behavior. They don't."

* Reporter Sara Schilling contributed to this report.