Monday, Sep. 15, 2008

State appeals court debates teacher-student relations

By Steven Friederich, The (Aberdeen) Daily World

TACOMA -- Should teachers be allowed to have sex with their 18-year-old students?

Or, put another way, why can't students who are legally adults be allowed to have sex with whomever they want?

A panel of judges on the state Court of Appeals Division 2 phrased the question every way possible during a hearing last week in Tacoma.

Megan Valentine, a deputy prosecutor for Grays Harbor County, was on the defensive throughout the hearing, arguing in support of a law passed by the Legislature seven years ago.

In the Tri-Cities, the law already has been questioned by Superior Court Judge Dennis Yule, who recently dropped a charge against former Richland High music teacher Allan Eve, who was accused of having sex with an 18-year-old student.

Yule ruled the law for first-degree sexual misconduct with a minor is too vague because it doesn't clearly define "minor."

Benton County prosecutors have not decided whether to appeal the decision to the state Court of Appeals Division 3.

The law says teachers cannot have sex with students, but it's silent on an age limit except to say that the law applies to students who are at least 16, if the teacher is five years older than the student and they aren't married to each other.

At issue in the Grays Harbor case are allegations from 2006 that a former Hoquiam High School choir teacher, Matthew Hirschfelder, had a sexual relationship with one of his students.

Hirschfelder, then 33, denies a sexual relationship. The 18-year-old student says it happened.

Rob Hill, Hirschfelder's attorney, said the law is "unconstitutionally vague." Although the charge is sexual misconduct with a minor, the young woman allegedly involved was 18 and obviously not a minor, Hill said.

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.

It may take a couple of months for the appellate court to issue a decision. The case may end up before the state Supreme Court.

Valentine argued that students do not have a "fundamental right to have sex with their teachers," regardless of age, and that there is a "legitimate state interest" in discouraging such behavior.

The three judges on the panel picked apart the law.

Judge Robin Hunt went so far as to deconstruct the grammar of the law, from prepositional phrases to comma splicing.

Judges Marywave Van Deren and Christine Quinn-Brintnall seemed to focus on Valentine's argument that "students have fewer constitutional rights in regards to consensual sex if they're 18," as Van Deren put it.

"If you have an 18-year-old who is in Running Start (attending community college), she can have sex with her college professor in the afternoon but not with her (high school) music teacher in the morning," Judge Quinn-Brintnall asked. "You think that's OK?"

"I think this is about protecting the 18-year-old students," Valentine said.

"But not with the college professor?" Quinn-Brintnall added.

"I don't think the statute applies to a Running Start professor, but at the same time where the statute does apply, I think the Legislature is trying to protect all registered students, not just those under the age of 18," Valentine said.

" 'Minor' means less than 18 unless it's specifically defined within the statute, Van Deren said. "The Legislature could have said 'any student up to the age of 21.' If she's 18, she does have a right to make a decision on making consensual intercourse."

"So some 18-year-olds have a right to privacy, but if you're a student you don't?" Van Deren asked.

"It has to do in what the relationship is," Valentine said.

"So some 18-year-olds we'll pick apart and some we won't?" Van Deren pressed. "Isn't that kind of intrusive?"

Valentine replied, "Basically, what it comes down to is that if the statute can pass the proper constitutional scrutiny then the Legislature is allowed to regulate that."

Hill argued that the Legislature never intended to punish teachers with a felony crime for having sex with their students.

He cited a similar law vetoed by then-Gov. Gary Locke and noted that legislators took three cracks at writing the law before it eventually was passed. Their rationale was "we need to close a loophole and fix a problem that occurred," Hill told the judges.

Hill said that five years after the statute passed, the Office of the State Superintendent of Public Instruction hadn't yet updated its training manuals for teachers to note the consequences of the new law.

The Washington Education Association and the Washington Association of Criminal Defense Attorneys filed "friend of the court" briefs in the case supporting the defense's position.

Gov. Chris Gregoire has said she'll keep an eye on what happens in the case.

"If you're a teacher in a relationship with an 18-year-old student, that's a felony," the former attorney general said, adding that she was surprised at the notion that the law is vague. "We put that in. That's our law."

* Tri-City Herald reporter Paula Horton contributed to this report.