Appeals court rules case of teacher, student having sex should be dismissed

By Paula Horton, Herald staff writer

A state Court of Appeals has ruled a Western Washington criminal case against a teacher accused of having sex with an 18-year-old student should be dismissed.

Current law doesn't make it a crime, the court said.

The three-judge panel ruled the Hoquiam High School teacher should not have been charged with sexual misconduct with the female student because the Legislature "intended to only criminalize sexual contact between school employees and students aged 16 and 17."

The opinion Tuesday, from Court of Appeals Division 2 in Tacoma, stemmed from a Grays Harbor Superior Court case filed against Matthew Hirschfelder, then a 33-year-old choir teacher.

His attorney challenged the statute, saying a student who is 18 is not a minor, so a teacher can't be charged with sexual misconduct with a minor.

Hirschfelder appealed after a Grays Harbor Superior Court judge said the law was clear and a student can be a victim of the crime even if the student is 18.

Benton County prosecutors have been watching the case since a similar charge against a former Richland music teacher was dismissed in August.

Superior Court Judge Dennis Yule said the law was too vague because it doesn't clearly define "minor" and only used the phrase "at least 16 years of age."

Yule consequently dismissed charges against Allan Eve, who was accused of having sex with an 18-year-old student.

Benton County prosecutors have not yet said whether they will appeal Yule's ruling.

The appeals court also said the statute is "ambiguous" and consulted legislative history to determine its meaning.

Based on that, the court said the Legislature intended to "criminalize only the behavior of school employees who have sexual intercourse with minor students under the age of 18."

The employee also has to be at least five years older than the minor student for it to be a crime, according to the statute.

The Washington Education Association sided with Hirschfelder's defense attorney and said the law making it a crime for teachers to have sex with students doesn't apply to 18-year-olds.

The state teachers union said it doesn't condone teachers having inappropriate sexual relationships with students, but current law doesn't make it clear if it applies to all students or just students who are minors.

The Grays Harbor case, argued on appeal in September, may now end up before the state Supreme Court.

Grays Harbor Prosecutor Stew Menefee says his office is considering an appeal.

"This issue is one that is may be ripe for the Supreme Court to review," Menefee told The Daily World in Aberdeen.

The state Legislature also is poised to debate the issue.

Rep. Larry Haler, R-Richland, said the Grays Harbor case and the Benton County case make it all the more important that the Legislature revisit the law.

Haler introduced a bill that would make it a crime for a public school employee to have sex with students under 21.

He likened the student-teacher dynamic to a supervisor sexually harassing an employee. A teacher has the same kind of power over a student, he said, and that power can be abused even if a student is 18 or older.

"Students are vulnerable, especially in a student-teacher relationship where there's potential quid pro quo," he said.

Haler's bill would also mandate a minimum of five years in prison for first-degree sexual misconduct with a minor and one year in prison for second-degree sexual misconduct with a minor.

Haler said his bill has bipartisan support.

"It is starting to gain traction," he said.

Eve, a longtime Richland School District employee, still faces a Jan. 26 trial involving two other alleged victims.

He is charged with communication with a minor for immoral purposes and fourth-degree assault with sexual motivation for incidents involving two students who were under 18 at the time.

Court documents claim Eve left several anonymous typed notes in a girl's locker and at least one note had sexual overtones, with Eve saying he wanted to "be intimate" with her.

He's also accused of making another girl feel uncomfortable by getting too close to her during a meeting, telling her she was pretty and massaging her hand, documents said.

-- Reporter Michelle Dupler contributed to this report.

* Paula Horton: 509-582-1556; phorton@tricityherald.com

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Wednesday, Jan. 14, 2009

Appeals court rules case of teacher, student having sex should be dismissed

By Paula Horton, Herald staff writer