Student-teacher sex: When is it OK?

A man is charged with sexual misconduct with a minor, even though the student was 18

Published November 20, 2010 2:01AM (EST)

Matthew Hirschfelder, a former choir teacher at Hoquiam High School in Washington state, had sex in his office with a student days before she graduated. Then 33, he was charged with first degree sexual misconduct with a minor, even though the student was 18 at the time. I mentioned this case yesterday in a link roundup, but the issues it raises -- especially, whether a high school student can ever meaningfully consent to sex with a teacher -- deserves a bit more consideration.

The age of consent in Washington is 16, but a statute outlaws a few specific sexual relationships, including between a teacher and a "minor" student who is "at least sixteen years old." In an appeal, Hirschfelder argued that the statute was meant to criminalize sexual misconduct between teachers and students who are aged 16 and 17 (i.e. over the age of consent but under the age of 18). This week, however, the State Supreme Court ruled that legislators had originally intended to outlaw teachers having sex with students under 21 (the age cap for high school enrollment).

The court's decision reads, "That the legislature saw fit to criminalize sex between school employees and high school students -- even those who reach the age of majority while registered as students -- is a policy choice that recognizes the special position of trust and authority teachers hold over their students." The ruling essentially recasts all registered students between the age of 16 and 21 as incapable of consenting to sex, at least when it comes to school employees. Many states where the age of consent is 16 have similar laws. In a teacher-student sex case in Pennsylvania, a judge ruled:

A high school student who is assigned to a teacher's class does not have the capacity to welcome that teacher's physical sexual conduct. Under these circumstances, the teacher's conduct is deemed unwelcomed. Unwelcome sexual conduct constitutes a sexually hostile educational environment, a form of sexual harassment. And sexual harassment constitutes discrimination on the basis of sex.

Of course, teacher-student sex is a controversial topic even with students over the age of 21, and many colleges have banned hot-for-teacher hookups. We don't legislate those relationships from the outside, though, because we're talking about legal, consenting adults. Things get messier when looking at cases like Hirschfelder's. If we draw the line at high school graduation, as opposed to at a student's 18th birthday, it means that a teacher having sex with a 20-year-old high school student could be outlawed, even though someone of the same age could legally engage in a sexual relationship with a teacher if they were in college. It's easy enough to understand the frustration of the dissenting judge in this case, who wrote that the majority opinion "does not, ultimately make sense."

By Tracy Clark-Flory

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