For the moment, let’s offer this as a hypothetical:
A well-respected and popular high school art teacher, male, fifty years old, is accused by a former student of inappropriate conduct. Specifically, she claims that she met the teacher several times at area motels for consensual sexual activites while she was sixteen and seventeen years old, but after the period of time in which she was a student of his.
Based on the description of those consensual sexual activities, the well-respected and popular art teacher is arrested at school, and the police execute warrants to search his classroom and car for evidence of these encounters and the relationship.
The teacher is charged with several counts of contributing to the delinquency of a minor and several counts of crimes against nature. “Crimes against nature” in the state in question, refers specifically to anal and oral sex, and is a felony. (“Any person who carnally knows any male or female person by the anus or by or with the mouth…”) “Contributing to the delinquency of a minor” in the state in question (“Any person who engages in consensual sexual intercourse with a child 15 or older…”) is a misdemeanor.
The Supreme Court’s decision in Lawrence v. Texas seems arguably to have invalidated the “crimes against nature” laws – although they, and supporters of that decision, have always said that they were basing it on what two consenting adults do in the privacy of their home.
Should the “crimes against nature” law be at all applicable in this hypothetical, when the parties in question were not two consenting adults, but one adult and one under-18 teenager?
Should the police have arrested the teacher at school?
Should the police have searched the teacher’s classroom and car?
Should the community be outraged at the attempt to use the “crimes against nature” law under these circumstances?
In this instance can the “crimes against nature” statute be compared to statutory rape laws or laws prohibiting sexual acts between a minor and an adult? Since Lawrence vs. Texas limited its holding between two consenting adults, it seems to me to have left to the states the power to regulate sexual acts between an adult and a minor. If this Crimes Against Nature statute is similar to Statutory Rape laws or laws prohibiting sex acts between a minor and an adult, then the Crimes Against Nature legislation is valid under this interpretation of the statute.
The “Crimes Against Nature” law does not contain an element with respect to the ages of the participants. It merely says that “Any person who carnally knows any male or female person by the anus or by or with the mouth, you voluntarily submits to such knowledge, is guilty of [a felony].”
So in one sense, it’s not analogous to statutory rape laws, or, indeed, to the “Contributing to the delinquency” law, which does contain an element as to age.
But since Lawrence v. Texas limited its holding to adults, may such a law be applied here, where the sex was consensual but one of the actors underage?
I feel like this is a trick hypothetical, inasmuch as the asnwers to all your questions seem very straightfoward to me.
The Crime against nature law should not be applicable, since it’s unconstitutional.
Whether the police should have arrested the teacher at school and searched the classroom and car seem to me to be questions of police procedure and related to fourth amendment concerns if anything; I don’t pretend to understand procedure well enough to answer, but the answers are surely not predicated on whether crime against nature laws are relevant.
The community should always be outraged when the state attempts to enforce unconstitutional laws.
From a less legalistic perspective, I don’t see the need or utility of CaN laws in this case. Surely laws against statutory rape are sufficient to cover this situation; if they’re not, then they should be.
As near as I can tell, you’re suggesting that contributing to the delinquency of a minor carries a penalty insufficient to reflect the enormity of the crime. If this is so, wouldn’t that be the case if the art teacher had had purely vaginal intercourse with the girl? And shouldn’t, then, we increase penalties for Contributingetc. instead of tacking on unconstitutional laws?
Unless we can show that in some way having oral sex with an underage kid is more harmful than having vaginal intercourse, I think the answers to your questions are straightforward.
No. They’re unconstitutional. The Legislature could constitutionally enact a specific law applying only to minors, just as they do in the case of statutory rape. But here the law was meant to be generally applicable so it gets tossed.
Probably not, in the sense that doing so was unnecessarily harsh. But on what grounds would it be illegal for them to do so? Maybe the cops have been watching too much “Law and Order: SVU.”
Did they have a hypothetical warrant?
The legal community probably should. I know it’s your hypothetical, but the way this has been charged makes no sense. Why not charge statutory rape or sexual assault on a minor? Don’t all U.S. states have such statutes?
I would argue that the “Crimes against nature” laws would be invalidated by Lawrence because they don’t specifically refer to age and are therefore overbroad.
I think the search of the classroom is dubious but it’s public property and there really is no expectation of privacy there, is there? I see that as different than, say, lockers where there is a reasonable expectation of privacy. The search of the car seems like a fairly clearly allowable search with a warrant.
The arrest at school seems unnecessary unless there was a flight risk. It seems disruptive to the school and could have been handled in a more professional manner by the police. Is there any kind of legal reason that it shouldn’t have happened at school?
They should be outraged that the “Crimes Against Nature” statute exists regardless of the usage in this particular instance.
Oh – if the court expressly limited its holding like this, that adds a new wrinkle.
In effect, you’re saying that it’s not currently unconstitional to consider oral sex with a minor a worse crime than vaginal sex with a minor. Is that right? If so, I’d say (from my obviously non-lawyer perspective) that such a law might be constitutional, but I fail to see how it serves the public interest. If sex with a minor should carry a greater penalty, then increase the penalty – don’t rely on irrelevant statutes to increase the penalty.
In this state, a sixteen or seventeen year old having sexual intercourse with an adult is a misdemeanor. The statutory rape law applies to children fifteen and younger. There is a law that makes sexual intercourse between anyone under eighteen and anyone over eighteen a felony but only if that person is in a custodial relationship or position of authority. That won’t be applicable here, because everyone agrees that the sexual relationship began after the girl was no longer a student at the teacher’s school.
In essence, the instances of ordinary sexual intercourse between the girl and the teacher are only misdemeanors in this state. The acts of oral sex are felonies according to the “cirmes against nature” law.
Is the CAN law unconstitutional on its face, or only unconstitutional when applied to consenting adults?
May a state punish vaginal sex between a minor and an adult more lightly than oral sex between the minor and the adult? And just our of curiousity - may a state punish vaginal sex more harshly? As I wrote the sentence, it occurred to me that back in my school days, there was a definite hierarchy of sex acts, and oral was less of a milestone than “going all the way.” May a state constitutionally express that feeling in its laws? May a state express the reverse of that philosophy?
Again, no one argues that, as between consenting adults, these prohibitions are not constitutional. These questions apply only to acts between minors and adults.
I feel like the “well-respected and popular” descriptions are there as a ruse. This should have no bearing on the case.
IANAL, but it’s my understanding that the statutory rape laws in most states have a different provision for 16/17 yr olds, vs someone younger. And if the sex acts took place when the teacher was much younger, there is also a prvision (IIRC) for when there is only a minimal age difference between the two partners. So, I’d need to know some more details about exactly what the age of the teacher was when the sex acts took place.
For the rest of this, I’ll assume that neither of those two issues are relavent.
I don’t understand this, as I always thought that once the law was struck down, it was struck down, period. Unless a new statute was enacted specifically wrt “sodomy” and minors, then I don’t see that there is an argument that can be made about the law still having any validty.
No. See above.
Assuming that the teacher is charged with rape, I don’t see a problem with this. Rape is a serious charge, and arresting the teacher at his place of work is a good way for the police to be sure they know where he is and will be able to execute the arrest successfully.
It’s a humdinger of a question, but off the top of my head, I’d imagine it’d be like the 1994 case in Michigan, P v. Lino, where the Supreme Court, IIRC, said that, although there are applications of their “gross indecency” law that may be unconstitutional, in the case before them, it wasn’t, so they upheld the person’s conviction. I’m guessing that’s what would happen here. The teacher can be properly charged with the crimes against nature offense.
Why not? I’m assuming they had probable cause, or an arrest warrant, and I think they are well within their rights to grab him at his place of work.
According to your hypothetical, they obtained valid search warrants, so I would think so. There is too much unspoken in the hypothetical to make a determination as to whether the warrants were properly granted. If the student indicated that she was never in his classroom and never in his car, I would be hard-pressed to explain why they wanted to search those places and what they were searching for that would make for a proper warrant, but there’s not enough information to determine the validity of the warrants.
[quote=Should the community be outraged at the attempt to use the “crimes against nature” law under these circumstances?[/quote]
It’s up to them because there is already a statute proscribing more accurately and with less constitutional issues what the teacher did.
I don’t see why not. Like you said, Lawrence deals with regulation of sex acts between consentual adults. (A related question would be whether a law could punish oral or anal rape more harshly than vaginal rape).
Bricker, this is the direction I was initially going in. Hence, my use of the phrase then the Crimes Against Nature legislation is valid under this interpretation of the statute. If the statute is construed as applying only to those situations involving an adult and a minor, then it would seem to me the statute is constitutional. For example, let’s say Indiana has a Crimes Against Nature statute and it is worded identical to the one in your hypothetical. Now if the Indiana Supreme Court has interpreted it to apply only to those situations involving a minor and an adult, then this interpretation of the statute squares with Lawrence v Texas, and the U.S. Supreme Court, presumably, would honor the Supreme Court of Indiana’s interpretation of the statute. Since the interpretation of the statute as applied complies with Lawrence v. Texas, then the statute would be constitutional.
Now if the state supreme court has not interpreted the crimes against nature statute at all regarding its application, then it would seem to me the statute would be unconstitutional on its face because it is too broad and implicates two protected rights of consenting adults. One right would be found in the due process clause of “liberty” in the Fourteenth Amendment as recognized by Lawrence v. Texas and a privacy right recognized by the U.S. Supreme Court via the Ninth Amendment.
I do not see why the state would be prohibited. One may attempt to raise an Equal Protection claim under the Fourteenth Amendment but ultimately I think it would fail for two reasons. First, the state’s have historically punished crimes differently. There are different sentencing guidelines for theft as opposed to murder or burglary. There are different sentences to be applied to assault as opposed to assault with a deadly weapon. Second, although the Equal Protection claim is dubious in my opinion the state would have a very low level of scrutiny to pass, rational basis scrutiny to be exact since no fundamental right is being implicated and we do not have a suspect class.
The state should not have any difficulty in showing they have a legitimate state interest and the means they have chosen to pursue it are rationally related to the state interest. The state may demonstrate the psychological effects of vaginal intercourse are more profound and have a greater impact on young women than oral copulation. Or the state may also have an interest in precluding young women from becoming pregnant before they have acquired enough education to provide for their child in an attempt to keep the mother and child from becoming wards of the state. Since oral copulation does not run the risk of pregnancy, they punish sexual intercourse more harshly in an attempt to deter pregnancy from occuring.
May they? Yes.
Should they? Probably not. I fail to see why we need such a distinction in terms of the crime here. Do we charge people more harshly if they punch someone in the face than if they merely punch them in the gut? Or is a kick worse than a punch? Or would using a tire iron to break their ribs be worse than using a baseball bat?
Seems to me the whole idea that forced, non-consensual (which, really, is the justification for classic statutory rape laws, and this borderline misdemeanor statutory rape law) oral sex is inherently more or less damaging to a minor than forced, non-consensual vaginal or anal sex is preposterous.
One could argue that vaginal and anal sex constitute unique physical threats to the victim because of the risk of pregnancy or increased chance of HIV infection (which, though present, is far less in oral sex). But I doubt any lawmakers think that way–IMO, it’s probably just the horror/ick factor. Who are they to say that a minor who was forced to perform/receive oral sex suffered more or less psychological damage than one who was forced to partake in vaginal/anal sex? Besides, that sort of argument as to harm, IMO, would then suffer more scrutiny in cases where, say, the perp used a condom, had a vasectomy, etc. (since the potential for physical harm is reduced/eliminated).
Take all such distinctions off the books, IMO. Have one blanket law for statutory rape, covering all types of genital contact, perhaps another for sexual assault (dealing with less direct levels–say attempted rapes, indecent exposure of self/victim without contact, etc.).
But that aside, it seems to me that the law, as it stands, is enforceable at different levels, as Bricker has proposed.
To answer John Mace, the teacher is fifty years old, and the the acts occurred last fall. At best, he was 49 when the acts took place. The former student was under eighteen but over fifteen.
To all: the hypo is pretty real, although I did change a few facts. He’s a drama teacher, not an art teacher. The fact that the teacher is well-liked and respected has no legal relevance, but it may explain why there is such strong community reaction in his favor, rather than simple condemnation of a older man sexually involved with a minor.
There’s an editorial here discussing the actual case, and as you can see, it focuses far more on the outrage at the use of the “Crimes Against Nature” law than it does on the sexual relationship.
There are a few more disclosures to be made about this case in the transition from hypothetical to real.
One is that I know the accused personally. I haven’t seen him for about fifteen years, but when I worked with him he was an outstanding, talented, and inspiring music director.
I was concerned that laying out the whole story might focus attention on issues that are irrelevant - or, in the alternative, that people would adopt a position that they would not if they had all the facts.
But I suppose you’re right.
The other key element I changed in my hypo is that, in the real-life version, both the former student and the teacher are male.
Not to speak for Bricker, but I think in this case, for one thing, he wanted to make the hypothetical case involve a male and female to guard against a possible anti-same-sex element that may crop up. By presenting the hypothetical, he can then ascertain if the reactions are different in a real-life same-sex case.
By letting out the facts in a “dribs”, it makes it easier to determine which facts are most prejudicial or crucial in forming our opinions.
Not per se, that is, if there has been some other crime committed by having sexual contact with a minor, that is the important crime, and not what nature the sexual contact took.
Is there another statue applicable, where the teacher would be charged even if no vaginal intercourse took place?
It would seem to me that the state might punish vaginal sex more harshly than oral or anal sex, since vaginal sex can lead to more severe consequences (i.e. pregnancy) whereas oral sex does not.
The answer to both would be “I don’t see why not”. Unless the implication is that the arrest and search should not have been carried out pursuant to the investigation of some crime of comparable seriousness, say burglary or something similar.
No. They should be outraged that a grown man is having sex with a minor.
On preview, I see what I formerly suspected - that both are male. No difference - sexual contact with a minor is wrong and ought to be punished for male-male as much as for male-female, where sexual contact did not include the possibility of pregnancy.