Daily Archives: February 1, 2014

Teacher/Student Sex: Is It Always Unconscionable?

It seems like every week, another teacher, coach, or school employee is convicted for engaging in consensual sex with a student. The crime is designated as a third degree felony punishable by up to five years in prison. The offender is often a young person who has had no previous criminal history and otherwise is regarded as an upstanding law abiding citizen. In addition to possible imprisonment, the teacher or coach loses his/her professional license, becomes a convicted felon and is subject to designation as a sexual offender or sexual predator. Such designation may involve up to a lifetime requirement to register as a sexual predator with the local Sheriff as well as community notification.

In 1974, the Ohio Legislature enacted Ohio Revised Code § 2903.07(A)(7) with the still noble intent to guard against the vulnerability that adolescents and children have when taken advantage of by adults who are in a position of trust and authority over them. Usually, proof of a culpable mental state is required to establish criminal liability. Some laws however, impose criminal liability for specified conduct regardless of mental state or intention. R.C. 2903.07(A)(7) is one such law. It applies not only to teachers and coaches, but to anyone who occupies a position of trust and authority over students. This may include school employees such as teachers’ aides, floor monitors, bus drivers, or security guards. The conduct prohibited by R.C. 2903.07(A)(7) consists of two distinct elements. The first is that the offender engaged in sexual conduct with another person. “Sexual conduct” is defined broadly enough to cover all conceivable forms of sexual activity between consenting persons.

The second element is that the other person is not the spouse of the offender, when (a) the offender is a teacher, administrator, coach, or other person in authority at a school in which the other person is enrolled or attends; and (b) the offender is not enrolled in, and does not attend that school. Once those two factual elements are
established, a violation must be found and the actor’s intent when engaged in the sexual conduct with the other person is not relevant. The seemingly harsh penalties follow. Some discretion is preserved for the judge who hears the evidence.

A judge can consider certain mitigating and/or aggravating circumstances before imposing sentence. Often, family friends and loved ones of the convicted school employee are shocked by the apparent severity of the sentence compared to what many regard as a not so serious offense especially when the offender and the student are close in age, the student is sexually active, appears to be sophisticated in the ways of the world and may even have been the instigator of the sexual conduct. In some cases, the school employee may be more “vulnerable” than a street-wise student.

Without in any way condoning or minimizing the seriousness of the offense, it may be time to examine whether the underlying premise of the law should apply as broadly as the Legislature intended in 1974. Then as now, the
Legislature was rightly concerned about protecting individuals in a variety of situations where another might take “unconscionable advantage” of that individual. What may have appeared to be an “unconscionable advantage” almost 40 years ago may be very different in the present social context. It is at least conceivable that there will be circumstances where the school employee did not take unconscionable advantage of a student. Consequently, it might be worthwhile to question whether and to what extent an otherwise “good person” should suffer the full brunt of the statute’s punishment when the student may not be as blameless or innocent as the Legislature may have presumed. Mental health experts, who may have opined about the inability of adolescents to make mature informed decisions
in 1974, may have a somewhat different view today. At any rate, the number of people affected warrants a second look at this statute.