# How can sex between consenting adults be a felony in Texas? **URL:** \ **Category:** Great Debates\ **Created:** [June 2, 2006, 9:56pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209 "2006-06-02T21:56:09Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [June 2, 2006, 9:56pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/1 "2006-06-02T21:56:09Z")
[Per this story](http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/060206dnmethebron.43e83812.html) a 20 something HS teacher had sex with an 18 year old HS student. It may be unethical and/or a firing offense, but how can this be\* criminally \* illegal if both are consenting adults? Aren’t you essentially criminalizing sex just due to the nature of the occupational relationship? How can this pass legal/constitutional muster. > [@](#): > > A first-year Hebron High School teacher and former Miss Texas contestant faces up to 20 years in jail after an 18-year-old student told police he had sex with the 25-year-old woman several times at her apartment in Austin Ranch. > > Amy McElhenney, who taught Spanish and was a cross-country coach at the Lewisville ISD school in Carrollton, is charged with having an improper relationship with a student, a second-degree felony. She was arrested on May 25, the last day of school, posted $5,000 bail and was released. > > Amy McElhenney Ms. McElhenney could not be reached for comment. The student’s identity was not released. > > According to an arrest warrant affidavit, another student sent an anonymous note last month to Hebron’s resource police officer that indicated Ms. McElhenney’s cellphone contained “intimate” text messages to and from the 18-year-old. > > When police interviewed Ms. McElhenney at the school, she allowed them to view the text messages. > > “Messages that were on there led us to believe there was a little bit more going on between the teacher and this student,” said Carrollton police Sgt. David Sponhour. > > In an affidavit, a Carrollton police officer said the messages “constitute a flirtatious and endearing relationship” between Ms. McElhenney and the student. > > While Ms. McElhenney denied having a physical or sexual relationship with the teen, she told police she felt their relationship was inappropriate, police said. > > When interviewed at home, however, the student gave police a written statement in which he said he and Ms. McElhenney had sex on “numerous occasions” at her apartment. He told police their alleged relationship began in February. > [@](#): > > Ms. McElhenney was charged under a law that outlaws sexual relationships between educators and students even if the sex is consensual and the student is of legal age. > > In Texas, the age of consent is 17. > > Proponents of the law have said it sends the message that even older teenagers should not be considered capable of consenting to sex with a teacher, especially since educators have power over their students. > > Others, however, have said that while the law’s intent may be good, it should contain different provisions for different ages and distinguish between students who do and don’t consent. > > The law took effect Sept. 1, 2003. Between then and the end of 2005, five Texas teachers were convicted and sent to prison under the law. > > Three Garland school district teachers were arrested under the law in 2005 and accused of having sexual relationships with students. One also was charged with two counts of indecency with a child because the student was underage . ---
**Author:** ![bup](https://avatars.discourse-cdn.com/v4/letter/b/6bbea6/32.png) [@bup](https://boards.straightdope.com/u/bup)\ **Post date:** [June 2, 2006, 10:06pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/2 "2006-06-02T22:06:25Z")
I don’t agree with the law, but laws have stood that are similar - any sex outside of marriage is illegal; oral sex is illegal no matter what, etc. On what basis would a law like that be illegal? The very fact that age of consent exists implies some agreement that sex can be regulated. ---
**Author:** ![Qadgop\_the\_Mercotan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/qadgop_the_mercotan/32/83_2.png) [@Qadgop\_the\_Mercotan](https://boards.straightdope.com/u/Qadgop_the_Mercotan)\ **Post date:** [June 2, 2006, 10:19pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/3 "2006-06-02T22:19:59Z")
Sex between “consenting” adults can be illegal where there is statutory unequal status in the relationship. True consent can’t be given in such situations. Teacher/Student sexual relations fall into such categories. So do Corrections employee/prisoner sexual relations. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [June 2, 2006, 10:23pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/4 "2006-06-02T22:23:00Z")
Yeah, they’re criminalizing sex due to the nature of the occupational relationship. There’s lots of things that are criminalized because of an occupational relationship. Child care workers have to report suspected abuse. Isn’t that an abridgement of freedom of speech? Public officials can’t accept gifts worth more than X. Hey, what’s wrong with a gift? AMTRAK engineers must submit to a drug test anytime they’re involved in an accident. Even if there’s no probable cause. And a teacher can’t have sex with a student. Period. Even if the student is capable of giving consent. The relationship between the teacher and student is considered a coercive factor. And if sex is coerced, it isn’t consensual. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 2, 2006, 10:35pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/5 "2006-06-02T22:35:57Z")
> [@astro](#): > > Aren’t you essentially criminalizing sex just due to the nature of the occupational relationship? How can this pass legal/constitutional muster. What portion of the Constitution do you think this violates? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 2, 2006, 10:48pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/6 "2006-06-02T22:48:53Z")
> [@Miller](#): > > What portion of the Constitution do you think this violates? I guess you could make an argument that it’s unconstitutional based on _Lawrence_, which says that consensual sex between adults is protected under a privacy right. It would be a weak argument, because unlike _Lawrence_, this carried the potential of coercion because of the unequal power relationship, but if you were going to make the argument that it’s unconstitutional, _Lawrence_ and the privacy cases leading up to it is what you’d probably want to use. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [June 2, 2006, 11:06pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/7 "2006-06-02T23:06:19Z")
> [@bup](#): > > I don’t agree with the law, but laws have stood that are similar - any sex outside of marriage is illegal; oral sex is illegal no matter what, etc. > > On what basis would a law like that be illegal? In theory, a state could criminalize any sex act consummated in connection with sexual harassment – the existence of such to be adjudged by a criminal-law beyond-a-reasonable-doubt standard, but the definition identical with that developed in civil law. I.e., if you either make a _quid pro quo_ offer for sex with a subordinate, or create a sex-related “hostile work environment” for any coworker, subordinate, equal or superior; and if you and the harrassed party actually have any kind of sexual contact as a result of your behavior; then you could go to prison on what amounts to a rape charge. I mean, they **could** do that. Just sayin’. ---
**Author:** ![Vlad\_Igor](https://avatars.discourse-cdn.com/v4/letter/v/7feea3/32.png) [@Vlad\_Igor](https://boards.straightdope.com/u/Vlad_Igor)\ **Post date:** [June 3, 2006, 12:17am UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/8 "2006-06-03T00:17:42Z")
> [@kunilou](#): > > The relationship between the teacher and student is considered a coercive factor. And if sex is coerced, it isn’t consensual. Just to anal-retentively pick nits, it can’t be proven consensual because of the nature of the student-teacher relationship. This concept also applies to enrolling prisoners and mentally handicapped persons in medical trials: because of their dependent relationships, you can never conclusively show that they consented without any thought of retribution if they don’t consent. Vlad/Igor ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [June 3, 2006, 1:28am UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/9 "2006-06-03T01:28:33Z")
Right – many jurisdictions have updated their “sexual battery” statutes to include these cases. IIRC, in cases such as these, when are dealing with a public high school, since the student’s attendance is (most likely) _legally mandatory_ through 12th year, it is considered that the school staff has a degree of authority that vitiates any consent. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [June 3, 2006, 1:52am UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/10 "2006-06-03T01:52:16Z")
> [@JRDelirious](#): > > Right – many jurisdictions have updated their “sexual battery” statutes to include these cases. IIRC, in cases such as these, when are dealing with a public high school, since the student’s attendance is (most likely) _legally mandatory_ through 12th year, it is considered that the school staff has a degree of authority that vitiates any consent. School attendance is only mandatory until 15 or 16 in most states. No state requires 18 year olds (ie a legal adult) to attend school. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [June 3, 2006, 3:13am UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/11 "2006-06-03T03:13:11Z")
> [@alphaboi867](#): > > School attendance is only mandatory until 15 or 16 in most states. No state requires 18 year olds (ie a legal adult) to attend school. That is what I thought too- and besides, how come it’s illegal for a (say) 28yo (female) teacher to have sex with an 18yo (male) student, but not a 28yo female boss to have sex with an 18yo male employee? By this stage, I’d argue there’s no difference at all- an 18yo chooses to remain at school, and is more than capable of giving informed consent to sex with the (presumably attractive) teacher who’s not that much older than them, IMO. ---
**Author:** ![bobkitty](https://avatars.discourse-cdn.com/v4/letter/b/c67d28/32.png) [@bobkitty](https://boards.straightdope.com/u/bobkitty)\ **Post date:** [June 3, 2006, 6:59pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/12 "2006-06-03T18:59:13Z")
I think the replies above hit the nail pretty firmly on the head; it’s impossible to show consent, because of the unequal relationship. Even if he made the initial approach, anyone who’s been through an education program has had it beaten into them that one does not mess with one’s students, regardless of age or desire. Additionally, it sets up a hostile environment for the **other** students: those who are aware of the situation may be on the lookout for/resentful of any perceived special treatment that the student gets. Puts an entirely new spin on the concept of teacher’s pet. And if the situation gets out, as this one did, it may have negative reprecussions on the student’s future plans: “Well, his GPA’s pretty high; how many teachers do you think he could he have been sleeping with?”. An over the top example, I know, but you simply never know. My two big questions: - What the hell precludes you from waiting the few months it’ll take for the person to graduate/leave your class/quit school? No one is ever going to hire her as a teacher again. All those years of school/money WASTED for a piece of ass. :wally - Are you telling me that a former Miss Texas contestant had to troll her student population to get laid? ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [June 3, 2006, 7:01pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/13 "2006-06-03T19:01:29Z")
OK, alternative 2: The State has claimed/shown a compelling public interest in that there be no inappropriate sexual contact between public school teachers and members of that public school’s student body (save the snickering, the puns are inevitable) and it has been decided that in the pursuit of that compelling interest, you need to adopt a Zero Tolerance policy for such conduct. ---
**Author:** ![Othersider](https://avatars.discourse-cdn.com/v4/letter/o/cab0a1/32.png) [@Othersider](https://boards.straightdope.com/u/Othersider)\ **Post date:** [June 4, 2006, 6:45am UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/14 "2006-06-04T06:45:36Z")
A friend of mine knows this girl. Interesting note (though, because it’s hearsay, you may just dismiss it as a rumor): she says the girl was responsible for one of her high school coaches getting fired by allegedly having “relations” with him. Is this what Alanis was talking about? _“It’s getting fired for having sex with a student / When you got a teacher fired for doing it with you”_ ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 4, 2006, 2:22pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/15 "2006-06-04T14:22:38Z")
Rational basis. > [@Martini Enfield](#): > > That is what I thought too- and besides, how come it’s illegal for a (say) 28yo (female) teacher to have sex with an 18yo (male) student, but not a 28yo female boss to have sex with an 18yo male employee? > > By this stage, I’d argue there’s no difference at all- an 18yo chooses to remain at school, and is more than capable of giving informed consent to sex with the (presumably attractive) teacher who’s not that much older than them, IMO. If you are arguing that the law violates the Equal Protection Clause, as you seem to be, you are applying the wrong method. Is the proposed classification racially based? If it is, we apply strict scrutiny to the law. But it’s not. Is the proposed classification based on gender? If it is, then we apply intermediate scrutiny. But it’s not. We therefore apply the rational basis test. Could the legislature have a rational basis for making this distinction? We do NOT ask if there’s a better way, if the legislature could have been wiser, if there are other situations that would also be regulated if this one is, or if the legislature actually enunciated the rational basis it is relying upon. We simply ask: is there a possible rational basis for this distinction? There is, as indicated above in many posts. End of inquiry. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [June 5, 2006, 2:24am UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/16 "2006-06-05T02:24:40Z")
> [@Bricker](#): > > Rational basis. > > If you are arguing that the law violates the Equal Protection Clause, as you seem to be, you are applying the wrong method. The what now? **Bricker** , as I occaisonally have to remind people, I’m not in the USA. Which means I don’t have a working knowledge of the US Constitution or the myriad interpretations thereof by whatever Judges in the US have had to interpret different aspects of it at some time or another. So no, I wasn’t making some sort of half-assed attempt at arguing the law violates some clause I’m not familiar with- I was simply applying what appeared to me, to be a logical inconsistency, namely that any argument against an 18yo student sleeping with his or her slighty older teacher should also be valid against an 18yo employee sleeping with his or her slightly older boss- yet that’s not illegal, and an adult student screwing his teacher is. ---
**Author:** ![Malienation](https://avatars.discourse-cdn.com/v4/letter/m/4af34b/32.png) [@Malienation](https://boards.straightdope.com/u/Malienation)\ **Post date:** [June 5, 2006, 2:31am UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/17 "2006-06-05T02:31:46Z")
Hey, the Bible thumpers can do anything these days. Some states are criminalizing the sale of sex toys (vibrators, dildos, you name it). ---
**Author:** ![D\_Odds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/d_odds/32/2882_2.png) [@D\_Odds](https://boards.straightdope.com/u/D_Odds)\ **Post date:** [June 5, 2006, 12:03pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/18 "2006-06-05T12:03:29Z")
**Malienation** , can you back up that statement with a reputible cite? Specifically, a cite of a state-wide law or even a bill that makes sex toys illegal. You won’t mind if I don’t hold my breath waiting. ---
**Author:** ![Crotalus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crotalus/32/41_2.png) [@Crotalus](https://boards.straightdope.com/u/Crotalus)\ **Post date:** [June 5, 2006, 12:50pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/19 "2006-06-05T12:50:55Z")
> [@D\_Odds](#): > > **Malienation** , can you back up that statement with a reputible cite? Specifically, a cite of a state-wide law or even a bill that makes sex toys illegal. > > You won’t mind if I don’t hold my breath waiting. [Exhale.](http://www.wistv.com/Global/story.asp?S=4802296) ---
**Author:** ![D\_Odds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/d_odds/32/2882_2.png) [@D\_Odds](https://boards.straightdope.com/u/D_Odds)\ **Post date:** [June 5, 2006, 1:07pm UTC](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209/20 "2006-06-05T13:07:51Z")
> [@Crotalus](#): > > [Exhale.](http://www.wistv.com/Global/story.asp?S=4802296) Wow…just wow. Any idea how much traction this bill got? Is it the work of one grandstanding ass and a few syncophants, or did he seem to have significant support? To paraphrase Robins Williams as Adrian Cronauer, "(He is) in more dire need of a blowjob than any white man in history. " [Next page](https://boards.straightdope.com/t/how-can-sex-between-consenting-adults-be-a-felony-in-texas/359209.md?page=2)