Arkansas Supreme Court strikes down law criminalizing consensual relationships between teachers and adult K-12 students

Paschal v. State of Arkansas, No. CR 11-673 (Ark. Mar. 29, 2012)

Abstract: The Arkansas Supreme Court, in a 4-3 split, has ruled that a state law making it a crime for a K-12 teacher to engage in consensual sexual contact with a student who is an adult violates the state constitution. The court’s majority determined that the state constitution recognizes a “fundamental right to privacy implicit in our law” that “protects all private, consensual, noncommerical acts of sexual intimacy between adults.” While it acknowledged that it was possible that the state legislature “intended to criminalize a teacher’s use of his or her position of trust or authority over an adult student to procure sex,” the majority pointed out the law contained no language indicating such an intent.

“[A]s applied in this case,” the majority ruled, “[the law] criminalizes consensual sexual conduct between adults and, therefore, . . . . infringes on [the teacher's] fundamental right to privacy.” Because the law infringed on a fundamental right, the majority applied a strict scrutiny analysis. Under that analysis, the law could only be upheld if it advances a compelling state interest and the statute is the least restrictive method available to carry out the state interest. Assuming that there was a compelling state interest and that the law advanced that interest, the majority found the law failed to survive strict scrutiny because criminalizing such conduct was not the least restrictive method for accomplishing the state’s interest.

Facts/Issues: David Paschal was convicted of four counts of second-degree sexual assault for violating a state statute that provides: “[a] person commits sexual assault in the second degree if the person [i]s a teacher in a public school in a grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is [a] student enrolled in the public school and [l]ess than twenty-one (21) years of age.” Paschal, who was a teacher, was involved in a consensual sexual relationship with a student who was 18, and an adult under state law, at the time the relationship began.

On appeal, Paschal asserted that the statute infringes on a fundamental right of privacy and because the statute is not the least restrictive method available for the promotion of a state interest, it is unconstitutional. The state countered that there is no fundamental right for a public high school teacher to have sex with an eighteen-year-old high school student enrolled in that public school.

Ruling/Rationale: The Arkansas Supreme Court reversed and dismissed Paschal’s conviction of the four counts of second-degree sexual assault. A majority of the court’s seven justices concluded that the statute, “as applied in this case, infringes on a fundamental right and is not the least restrictive method available for the promotion of a state interest; therefore, it is unconstitutional.” The majority agreed that there is a constitutionally protected fundamental right of privacy for consenting adults to engage in noncommercial acts of sexual intimacy.

The majority rejected the state’s argument that the statute was constitutional because the state supreme court had upheld a similar statute in Talbert v. State, 239 S.W.3d 504 (Ark. 2006). The majority distinguished the statute in Talbert, pointing out that the statute there did not criminalize sexual relations between consenting adults, but instead criminalized a member of the clergy using his/her position of trust or authority over the victim to engage in sexual intercourse or deviate sexual activity.

Here, having determined that the statute at issue criminalized consensual sexual conduct between adults, and, thus, infringed on Paschal’s fundamental right to privacy, the majority subjected the statute to a strict scrutiny review. Under strict scrutiny, the statute could only survive if it advances a compelling state interest and is the least restrictive method available for achieving that interest. Assuming the interest expressed by the state, i.e., “protecting adult students from the sexual advances of teachers who have power, authority, or control over them,” is compelling and the statute advances that interest, the only remaining question is whether the statute is the least restrictive method of achieving that interest.

The majority concluded that the statute, which criminalizes adult consensual sex, is not the least restrictive method. It pointed that the interest expressed by the state is already advanced by another statute, “which prohibits a mandated reporter in a position of trust or authority over a victim from using the position of trust or authority to engage in sexual intercourse or deviate activity.” It concluded that the statute at issue criminalizes consensual sexual conduct between adults, and, therefore, the statute “as applied in this case infringes on a fundamental right and … is unconstitutional.”

The dissent took issue with the majority’s finding of a lack of legislative intent to criminalize teachers using their position of trust and authority to engage in sexual contact with adult students on the basis that the statute failed to expressly spell it out. It argued that it is implicit that K-12 teachers know they hold a position of trust and authority vis-a-vis students. While acknowledging the fundamental right of privacy for adults to engage in private, consensual, noncommercial intimacy in the privacy of the home, the dissent said, ”this court has never held or even suggested that a fundamental right of privacy exists to enable high school teachers to have sex with the school’s enrolled students.”

The dissent also noted that a number of other jurisdictions “have determined that restrictions on [student-teacher relationships] do not infringe on the right to intimate association or privacy.” It stressed that the “statute at issue in this case does not infringe on the non-job-related sexual activity of Paschal, or any other teacher, and it does not directly or substantially burden his right to engage in acts of sexual intimacy with other consenting adults.”

Finally, the dissent warned:

Once this opinion is handed down, there will be nothing to prevent sexual contact between high school teachers and enrolled students who have turned eighteen. This will cause significant disruption in our high schools and have a deleterious impact on education in general and the teacher-student dynamic in particular. That is completely contrary to the State’s duty, which is to protect its students in the public school setting against sexual advances and exploitation by teachers. That duty has been completely jeopardized and undermined by today’s decision.

Paschal v. State of Arkansas, No. CR-11-673 (Ark. Mar. 29, 2012)

[Editor's Note:  The majority's decision rests on a right to privacy deduced from the Arkansas Constitution.

The majority took issue with the dissent's characterization of the facts before the court.  "Oddly, the dissents repeatedly refer to Paschal’s misuse of his position of trust or authority when that is not at issue in this case," it said in a footnote. "Section 5-14-125(a)(6) is a strict-liability statute. The State was required to prove only that, while Paschal was a teacher, he had sexual contact with a student who was less than twenty-one years of age. We find appalling the statement from one of the dissenting justices that the majority’s interpretation of the statute condones a teacher’s misuse of trust or authority. A cursory glance at section 5-14-125(a)(6)reveals that the statute contains no language regarding trust or authority, much less the misuse of that trust or authority."

In March 2012, Legal Clips summarized an Associated Press (AP) report in the Seattle Pilot Intelligencer noting that California Assemblywoman Kristin Olsen had sponsored a bill that would make relationships between a teacher and a student a felony, even if the student is 18.  The bill also would strip school employees of their pensions and retiree health care if they are convicted of that crime. To prevent teachers from “grooming” students for relationships when they become adults, the bill would also criminalize seductive communication, including sexual text messages. “Our hope is that that will be a pretty strong and painful deterrent and will cause someone to think twice before starting an inappropriate, unethical relationship with a student,” said Olsen.

Even though a teacher engaging in a sexual relationship with a student who has reached the age of 18 may not subject him or her to criminal prosecution, there is the matter of civil liability for not only the teacher, but school officials in a supervisory position, and the school district itself. In March 2012, Legal Clips summarized a Massachusetts federal district court decision in Doe v. Fournier holding that a female student had stated a valid claim for violation of her Fourteenth Amendment substantive due process rights based on the student’s sexual relationship with a school guidance counselor, even though the student was over the age of consent at the time of the relationship. The court denied the joint motion to dismiss by the municipality, the school board and school district officials, and the motion to dismiss by the guidance counselor. The court found the substantive due process claim valid based on sufficient allegations of actual knowledge of the discrimination and deliberate indifference to the discrimination. Relying on these same findings, the Massachusetts court also held that the student had stated a valid claim for violation of Title IX against the municipality and the school board.]

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