The Denton Record Chronicle reported on February 28, 2019, that a female teacher with Denton ISD had been arrested for having a sexual relationship with a 17-year-old male student. The teacher was arrested for violating Texas Penal Code section 21.12 which makes is a Second-Degree Felony for “an employee of a public or private primary or secondary school” to “engage in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works.”
It is a defense if the employee and student are (1) married at the time of sexual contact, or (2) if the employee is not more than three years older than the student at the time of the offense, AND the relationship began prior to the employee becoming employed at the school.
This statute is a train-wreck, for lots of reasons. First, unlike other statutes prohibiting “types” (for lack of a better word) of sexual relationships, this statute does so based on some imagined, amorphous power dynamic between the two people: teacher (dominate), and student (subordinate). This is unlike anything else in the Penal Code. Generally, sex between two consenting adults is legal. For example, sexual assault (rape) is prohibited because what is missing is consent. Sexual assault of a minor is illegal because minors cannot legally consent; again, consent is missing.
What this statute does is closer to what Texas attempted (unsuccessfully) to do in section 21.06 where is made “homosexual conduct” illegal, and attempted to outlaw a specific type of sex between two consenting adults. I say “attempted,” primarily because the Supreme Court of the United States held section 21.06 (prohibiting “homosexual conduct”) unconstitutional in 2003. The fact is, prohibiting types of sexual conduct between two consenting adults generally never survives constitutional scrutiny. Prohibitions based on a lack of consent, however, almost always survive constitutional challenge.
So what is 21.12 attempting to address: a lack of consent, or a type of sexual behavior between two consenting adults? It would seem to be the latter. Consider, the student here was 17 years old, and therefore legally able to “consent.” A “student” could also be 41 years old and recently enrolled in high school to obtain his diploma. However, 21.12 would make it illegal for the 41 year to begin a sexual relationship with a 46-year-old English teacher who taught at the same school (but might not even have taught the 46-year-old student.) No doubt, a 41-year-old can “consent.” Remember: it is only a defense to prosecution if the teacher is “not more than three years older” than the student at the time of the sexual contact AND the relationship began prior to enrolling in the school. So, what 21.12 is banning is a “type” of sexual activity: sex between a teacher and student, even where the sexual relationship is between two consenting adults. This is not a good start for a statute that seeks to be constitutional, and thus valid and enforceable.
The other primary issue with 21.12 is that it prohibits relationships which most (sane) people would have no issue with. To really make the point, here are three types of totally consensual sexual relationships, two of which are ILLEGAL under 21.12, and one of which is absolutely LEGAL under 41.12:
- A 41-year-old student enrolls in high school to obtain his high school diploma. While enrolled, the student meets and begins a romantic, sexual relationship with a 46-year-old English teacher whose classes the student is not even enrolled in. This relationship is ILLEGAL under 21.12. (“…if the employee is not more than three years older than the student…”)
- The same 41-year-old student meets a 41-year-old Math teacher and they begin a sexual relationship after he is enrolled. This relationship is ILLEGAL under 21.12. (“…AND the relationship began prior to the employee becoming employed at the school.”)
- An 18-year-old senior meets a 21-year-old on summer break before his senior year. They begin a sexual relationship, after which the 21-year-old obtains a job teaching a government the senior is taking at his high school. This relationship is LEGAL under 21.12.
How does this make any sense? It doesn’t. If anyone in the three examples above is particularly impressionable, it would be the 18-year-old. The 21-year-old Government teacher should (if anyone should) be prosecuted under 21.12. But the law would only punish the 41-year-old Math teacher and 46-year-old English teacher.
So, you say, the statute sounds like it’s unfair and is targeting the wrong group of people (the Math and English teachers, instead of the Government teacher in our examples), but is it really unconstitutional? I will get to that in a later blog post.