FAYETTEVILLE — The crime that sent a former Elkins High School teacher to prison for 30 years isn’t a crime at all in some states.
A jury convicted David Paschal, now 37, of second-degree sexual assault for a consensual sexual relationship. The other person in that relationship was 18 years old, which in terms of voting, eligibility for military service and other measures, qualifies as an adult.
Such May-December relationships aren’t unheard of, but the key in Paschal’s case boiled down to one fact: He was a teacher at the girl’s high school.
Though that relationship has cost Paschal his freedom for years, other states would have been much less harsh with him. In some states, he wouldn’t have faced any charges.
Arkansas’ age of legal consent for sex is 18, or 16 as long as the other party is no older than 20, but the law is different for teachers.
Under a state law in place since 2003, it is illegal for a teacher to have sex with a student at the school he or she works at if the student is younger than 21.
Those who break the law, such as Paschal, can be charged with second-degree sexual assault.
“There’s a broad consensus that the country and state have interests in protecting these students,” said Mark Booher, the deputy prosecuting attorney assigned to the Paschal case.
Other States
Arkansas’ law regarding consensual teacher-student sex is among the toughest in the nation, and Arkansas was one of the first states to pass a law specifically directed at cases involving 18-year-old students.
Four states — Connecticut, Ohio, North Carolina and Texas — make no consideration about the age of the student. If a high school teacher has sex with his or her student in those states, it’s considered a crime.
When the Texas law came up for a vote in 2003, it only applied to students younger than 18, but it was amended to specifically apply to those 18 and older.
However, in 2006, when Amy McElhenney, a 25-year-old high school teacher, was accused of having sex with an 18-year-old student, a Texas grand jury refused to indict her for felony improper relationship with a student. She did lose her teaching certificate in the state.
Other states, such as Maryland, Kansas, New Jersey and New Hampshire, do not address the issue of relationships with 18-year-old students, but the penalties for teachers who have sex with students under 18 are harsher than those for anyone else engaged in such activities.
Similar to Arkansas, Alaska, Michigan and Minnesota have pegged the age of consent at 16, but the age of consent is raised to 18 if the older sex partner is in a position of authority.
Challenges
Before his trial, Paschal challenged the constitutionality of Arkansas’ law criminalizing sex between a teacher and an 18-year-old student, arguing it unfairly punished consenting adults.
The state Supreme Court quickly struck down his challenge without comment. Defendants have had mixed success with challenging similar laws in other states.
In January 2009, the court of appeals in Washington sent a case of sexual misconduct involving a minor back to a lower court to be dismissed.
In that case, Matthew Hirschfelder, a former high school choir teacher accused of having sex with an 18-year-old student, argued the state law did not apply to his case because it specifically referred to sex with a minor.
However, the trial judge refused to dismiss the case, and when it reached the state Supreme Court in November, the justices ruled 5-4 that despite the use of the word “minor,” the law is meant to include students up to the age 21.
In response to the Hirschfelder case, the state Legislature amended the law to include students younger than 21.
In Georgia, things went differently for Melissa Lee Chase, a teacher who at 28 was convicted of assault for having a sexual relationship with a 16-year-old female student.
She was released from jail in November 2009 after the Georgia Supreme Court ruled Chase should have been able to use consent as a defense, because 16 is the age of consent in Georgia.
The following month, a judge in Cobb County, Ga., ruled another former high school teacher, Christopher King, then 36, was not guilty of sexual assault for carrying on a sexual relationship with a 17-year-old student.
“It’s gross, it’s awful, but it ain’t illegal,” Judge Robert Flournoy was quoted as saying in The Atlanta Journal-Constitution following the verdict.
Georgia’s state Senate passed a bill last year that would have outlawed all sex between high school students and teachers, but the measure has yet to be signed into law.
Ethical Concerns
Regardless of the state law, there’s something inherently wrong with an educator having sex with his or her student, said John Pijanowski, associate professor of educational leadership at the University of Arkansas.
Pijanowski, the author of “Professional Responsibility for Educators and the Arkansas Code of Ethics,” said it’s difficult to tell exactly how widespread teacher-student sex is because there’s not a lot of data out there to determine how often it’s reported.
“It’s one of those things that when it happens, it’s very dramatic for the community,” he said.
Teachers have a position of power, and because they hold power over students, it’s impossible for students to give consent to sex, Pijanowski said.
“A good ethical principle is to recognize it’s a professional relationship, not personal, regardless of age,” he said.