December 18, 2007
PENALTIES FOR CONSENSUAL SEX BETWEEN A
By: Kevin E. McCarthy, Principal Analyst
You asked whether other states, particularly in the Northeast, have enhanced criminal penalties or other provisions in their laws prohibiting consensual sex between an adult and a minor that apply specifically to cases involving a teacher and an elementary or secondary school student.
Most if not all states prohibit consensual sex between adults and minors below a certain age, with the age varying by state. In the Northeast, Connecticut, Maine, and New Hampshire have provisions in such laws that deal specifically with sex between teachers and students. New Jersey's law has provisions that apply to persons who have “supervisory or disciplinary power” over the victim, which appears to include teachers. Connecticut's law is unusual in that it applies to secondary school students who are 18 or older. Maine and New Jersey's laws cover a broader range of sexual conduct than Connecticut's law. Under New Hampshire's law, the adult must be in a position of authority over the victim and use this authority to coerce the victim submit to sexual penetration, although the law defines “coercion” broadly in this case. The penalties for the proscribed behavior vary widely by state.
Other states, including Vermont, criminalize sexual acts with a person who is “entrusted to the actor's care by authority of law” (13 Vt. Rev. Stat. Ann. § 3252). It is unclear that this provision covers teachers, according to the Legislative Council's Office, and there is no case law on point.
Other Northeastern states prohibit consensual sex between adults and minors, but do not have specific provisions regarding teachers and students. In Massachusetts, the age of consent is 16. New York considers a minor aged 16 or younger incapable of consenting to sexual acts, and has several offenses for sexual acts with such minors, with specific provisions when the minor is 14 or younger. Pennsylvania prohibits consensual sex with a minor under 16 if the actor is at least four years older. Rhode Island prohibits (1) consensual sex between a minor between 14 and 16 and a person who is 18 or older and (2) sexual contact or penetration with a minor under 14 under any circumstances.
Among the states in other parts of the country with specific provisions dealing with teachers and students are Kansas, Maryland, North Carolina, Ohio, and Washington. In North Carolina and Ohio, as in Connecticut, these provisions apply even if the student is 18 or older.
NORTHEASTERN STATES WITH SPECIFIC TEACHER-STUDENT PROVISIONS
Generally, under CGS Sec. 53a-71, a person is guilty of sexual assault in the second degree when he (1) engages in sexual intercourse with a minor who is 13, 14, or 15 and (2) is more than three years older than the minor. However, the crime also includes cases in which a school employee engages in sexual intercourse with a student enrolled in a school in which he works or a school under the jurisdiction of the local or regional school board that employs him. This provision applies regardless of the student's age and the difference in age between the student and the employee. It also applies to (1) coaches and (2) school volunteers 20 and older who are in a position of power, authority or supervision over a person under age 18.
Sexual assault in the second degree is class C felony or, if the victim of the offense is under 16, a class B felony. A class C felony is punishable by one to ten years imprisonment, a fine of up to $10,000, or both; a class B felony is punishable by one to 20 years imprisonment, a
fine of up to $15,000, or both. In either case, the court may not suspend or reduce nine months of the sentence. In addition, the violator must register as a sex offender for 10 years.
Maine has three laws involving sexual conduct with a minor that have specific provisions when the actors are students and teachers or other school staff. These laws do not apply when the student and staff member are married.
17-A Maine Rev. Stat. Ann. Sec. 255-A makes it a class D crime if a teacher, employee, or other official having authority over a student has sexual conduct with a student who is a minor. The provision applies to students in public or private elementary, secondary, or special education facilities. The adult is subject to this penalty if he has instructional, supervisory, or disciplinary authority over the student. If the sexual contact involves penetration, it is a class C crime punishable by imprisonment for up to five years, a fine of up to $5,000, or both. If the adult does not have authority over the student, but the adult is 21 or older, the contact is a class E crime, or a class D crime if the act involves penetration. The underlying crime of unlawful sexual contact applies when the person other than the actor has not expressly or impliedly acquiesced to the contact. The provisions dealing with students apply even if the student has consented to the contact.
17-A Me. Rev. Stat. Ann. Sec. 254 (sexual abuse of a minor) has specific penalties for sexual abuse of minors in cases involving school staff and older students. Generally, sexual abuse of a minor occurs when a person engages in a sexual act with a 14 or 15 year old and the actor is at least five years older than the minor. This is a class D crime, punishable by imprisonment for up to one year, a fine of up to $2,000, or both. There are heightened penalties if the actor is at least 10 years older than the minor or related to the minor within the second degree of consanguinity, e.g., an uncle and niece.
However, it is also sexual abuse of a minor for a teacher or other educational staff member who is at least 21 to engage in a sexual act with a student who is 16 or 17. The provision applies to sexual acts between students at public or private elementary, secondary, or special education institutions and to teachers, employees, and officials of schools, school districts, and other educational institutions. The offense is a class E crime, punishable by imprisonment for up to six months, a
fine of up to $1,000, or both. Again, there are heightened penalties if the actor is at least 10 years older than the minor or related to the minor within the second degree of consanguinity,
17-A Maine Rev. Stat. Ann. Sec. 260 establishes the crime of unlawful sexual touching. The underlying crime applies when the person touched did not expressly or impliedly agree to the touching and is a class D crime. However, in cases involving students and educational staff having authority over them (as defined above) this penalty applies even if the student consents to the touching. It is a class E crime if the adult is at least 21, regardless of whether he has authority over the student.
Under N.H. Rev. Stat. Sec. 632-A:3, a person is guilty of felonious sexual assault if he is in a position of authority over a victim aged 13 to 17, inclusive, and uses this authority to coerce the victim submit to sexual penetration. Case law has found that the statute covers teachers and that the coercion can take the form of undue influence, threats, or physical force, among other things. The crime is punishable by imprisonment for 10 to 20 years, a fine of up to $4,000, or both.
Under N.J. Rev. Stat. Sec. 2C 14-2, a person commits aggravated sexual assault if he commits an act of sexual penetration with another person when (1) the victim is under 13 years old; or (2) the victim is 13, 14, or 15 and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status. This crime is punishable by imprisonment for ten and 20 years, a fine of up to $200,000, or both.
Under the same section, a person is guilty of sexual assault if the victim is 16 or 17 and the actor has supervisory or disciplinary power over the victim “of any nature or in any capacity.” In the committee report that accompanied the legislation that added this phrase to the section and which is appended to the section, the Assembly Judiciary Committee noted that “the inclusion of this phrase is intended to clarify that in addition to parents, teachers, law enforcement officers, etc., this provision is intended to cover individuals with supervisory or disciplinary power in volunteer organizations.” By law, sexual assault is punishable by a fine of up to $150,000, imprisonment for five to ten years, or both.
Under N.J. Rev. Stat. Sec. 2C 14-3, a person commits criminal sexual contact if he has sexual contact other than penetration with another person when (1) the victim is under 13 years old; or (2) the victim is 13, 14, or 15 and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status. This crime is punishable by imprisonment for up to 18 months, a fine of up to $10,000, or both.
While it appears that both sections apply to teachers, we did not find any case law that identified the actor as a teacher or other educational employee.
OTHER STATES WITH SPECIFIC TEACHER STUDENT PROVISIONS
Under Kans. Stat. Ann. Sec. 21-3520, a teacher or a person in a position of authority commits unlawful sexual relations if he engages in consensual sexual intercourse, lewd fondling or touching, or sodomy with a person who is not married to the offender if the person with whom the offender is engaging in these acts is 16 or 17 years of age and a student enrolled at the school where the offender is employed. Unlawful sexual relations is classified as a severity level 10, person felony. Under Kansas law, the penalty for criminal offenses depends on the classification, whether the person has prior offenses, and several other factors.
Md. Code Sec. 3-308 prohibits certain school employees from engaging in consensual sexual acts with 16 or 17-year old students enrolled in their schools. The law applies to a person who is 21 or older who (1) is a full-time permanent employee of a public or private preschool, elementary school, or secondary school and (2) because of his or her position or occupation, exercises supervision over a minor who attends the school. It includes principals, vice principals, teachers, and school counselors at public and private schools.
A first offense is punishable by imprisonment for up to one year, a fine of up to $1,000, or both. If the offender had previously been convicted of this offense or other specified sex crimes, the maximum prison term is three years.
Other laws prohibit (1) anyone from having sexual contact with a child under age 14, if the actor is at least four years older than the child and (2) anyone 21 or older engaging in vaginal intercourse or other sexual acts with a 14 or 15 year old.
Under N.C. Gen. Stat. Ann. Sec. 14-27.7 if a public or private school teacher, administrator, student teacher, school safety officer, or coach engages in vaginal intercourse or a sexual act with a student, at any time during or after the time the defendant and victim were present together in the school where the adult is employed and the student goes to school, the defendant is guilty of a class G felony. The same penalty applies to other school employees, so long as they are at least four years older than the student. If there is a smaller difference in age, such school employees are guilt of a class A1 misdemeanor. (Sentencing in North Carolina depends on several factors, including prior offenses and the presence of aggravating or mitigating factors.) These provisions do not apply if the student and employee are married or if the offense occurred after the student graduated or otherwise was no longer a student.
Under Ohio Rev. Code Sec. 2907.03, it is sexual battery for one person to have sexual contact with another if:
1. the offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school subject to state board of education standards, the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school;
2. the other person is a minor, the offender is a teacher, administrator, coach, or other person in authority employed by or serving in an institution of higher education, and the other person is enrolled in or attends that institution; or
3. the other person is a minor, and the offender is the other person's athletic or other type of coach, instructor, or scout troop leader or is a person with temporary or occasional disciplinary control over the other person.
Sexual battery is a third degree felony and offenders are subject to imprisonment for one to five years, a fine of up to $5,000, or both. If the other person is under 13, sexual battery is a second degree felony and the court must sentence the offender to imprisonment for two to eight years, and can impose a fine of up to $10,000.
Under Wash. Rev. Code Sec. 9A.44.093, a person is guilty of sexual misconduct with a minor in the first degree when, among other things, he is a school employee who has, or knowingly causes another person under the age of 18 to have, sexual intercourse with a registered student of the school who is at least 16 years old and not married to the employee, if the employee is at least 60 months older than the student. The crime is a class C felony, punishable by imprisonment for up to five years, a fine of up to $10,000, or both.
Under Wash. Rev. Code Sec. 9A.44.096, a person is guilty of sexual misconduct with a minor in the second degree when, among other things, he is a school employee who has, or knowingly causes another person under the age of 18 to have, sexual contact with a registered student of the school who is at least 16 years old and not married to the employee, if the employee is at least 60 months older than the student. Violation is a gross misdemeanor, punishable by imprisonment in the county jail for up to one year, a fine of up to $5,000, or both.
Both provisions apply to employees of public and private elementary and secondary schools who are not enrolled as students at the school. Other laws prohibit consensual sex between adults and minors who are under 16.