OLYMPIA – It’s not illegal for a teacher to have consensual sex with an 18-year-old student, a state appeals court said two weeks ago.
The response from state lawmakers: Well, it ought to be.
House and Senate legislators want to ban any sexual contact between school employees and students when there’s more than five years’ difference in their ages. Violations would be a felony punishable by up to five years in prison.
The recent court ruling “opens the door for this being open season on our 18-year-old students,” said Rep. Larry Haler, R-Richland.
The change is backed by the state prosecutors association, teachers union, state school superintendent and a group representing school board members from across Washington.
“Teachers are in positions of great trust and great power,” said Richard Jansons, a school board member from Richland. “The abuse here and the betrayal and the deceit shouldn’t be unpunished.”
The Jan. 13 ruling from an appeals court in Tacoma involved a former high school choir teacher, Matthew Hirschfelder, 33. He was charged with sexual misconduct with a minor for allegedly having sex with a Hoquiam High School senior in 2006. Hirschfelder has denied any sexual relationship with the student.
His lawyer, Rob Hill, appealed the charge, saying the student wasn’t a minor. She was 18.
At a hearing at the state Capitol on Wednesday, a spokesman for the state association of criminal defense lawyers argued against criminalizing sex with 18-year-olds, even if they’re students.
“For the 18- or 19-year-olds, at some point in life, we have to say you’re old enough to make your own choices,” said Wade Samuelson.
After all, he said, 18-year-olds can vote, sign contracts and run for office. And a teacher in such a case “will undoubtedly be fired,” he said. “That person is done forever in the public school system.”
The potential humiliation and threat of losing a career, he said, makes such cases extremely rare.
Tom McBride, a lobbyist for the state prosecutors, said teachers sometimes are quietly allowed to move to another school.
“It is important to send a clear message in the K-12 system that staff has to keep its hands off the students,” McBride said.
Samuelson said criminalizing consensual sex is overkill.
“Why don’t we make this a death penalty offense? Boy, we’ll get some compliance then, won’t we?” he told lawmakers at one point. “… We’re taking the proverbial sledgehammer to a fly.”
In an unusual twist, lawmakers on Wednesday allowed written testimony from an anonymous student in Richland who said she’d been pressured into sex with her band teacher.
“I was just a kid who loved band and loved school,” she said. A week after she turned 18, she said, the teacher approached her to begin sexual relationship.
She said she felt controlled by him and tried unsuccessfully to end the relationship.
Eventually, another student reported that she, too, was sexually involved with the teacher.
“He’s already destroyed more than anybody knows,” the woman wrote.
“… Just because I was born during the school year should not determine what sort of protection I have from predators.”
The band teacher was arrested and charged, but the charges were dismissed in August on grounds similar to those in the January ruling.
Richland school board member Heather Cleary told lawmakers that the letter writer and band teacher allegedly had sex repeatedly at school.
“This person will never go to jail” or register as a sex offender, she said.
“He’ll never have to pay a penalty for the devastation he’s brought to the student, her family or our community.”
“This should never have happened,” added Jansons.