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Judge says AL law against school employees having sex with students is unconstitutional

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"It's a sad day in Alabama," says Donna Thomas as she sits on her front porch. Thomas is reacting a a Morgan County Circuit Court Judge's decision that Alabama's law prohibiting school employees from having sex with students is unconstitutional.

"It sent chills through my body. It's a disgrace," says Thomas. She is the president of all parent teacher associations in the Birmingham Public School system. "It opens the door to more and it's sad...that gives free range to do whatever they want to our children."

Criminal Defense Attorney Joel Sogol says not so fast. "The law has always been that if someone is in a position of authority over someone else and uses that position to either extract or coerce or groom the individual to get sexual benefit, that's always been against the law." Sogol has argued in the past that Alabama's statue about school employees and students is unconstitutional. "This is just an employment statute so if you're employed in a school system, whether you're a teacher or not, you're covered... if you're 19 and you're employed at one school as an assistant janitor and you've got an 18-year-old girlfriend at another school and y'all are sexually active you're committing a felony."

In Judge Thompson's order he cites other states with similar statutes but they go further than Alabama's. In his order the judge says, "The Kansas legislature implicitly recognized the disparity of power inherent in the teacher/student relationship and enacted legislation prohibiting sex between teachers or other school employees with positions of authority when the student was enrolled at the school where the offender was employed." The Judge also cites laws in Arkansas, Texas and more.

"Those that have been upheld as constitutional have more particulars in them. That it must be without consent or that the teacher is in the position to coerce the student," says former Jefferson County Circuit Judge Scott Vowell.

Here is how Alabama's law reads, "The Defendant is charged with being a school employee engaging in a sex act or deviant sexual intercourse with a student under the age of 19. A person commits the crime of being a school employee engaging in a sex act or deviant sexual intercourse with a student under the age of 19 years if he/she is a school employee and engages in a sex act or deviant sexual intercourse with a student, regardless of whether the student is male or female."

In Judge Thompson's order he says, "there is nothing in the statute that requires the State to show that a defendant ever had the student in class, had contact with the student ever had any authority or control over the student whatsoever while at school." He also says, "This court acknowledges that a disparity of power may inherently exist in a teacher/student relationship but it clearly does not exist between every school employee and every student regardless of where that student enrolled."

Vowell wants people to remember, the judge was not ruling right or wrong on the actions between a teacher and students. "We don't know what the facts are in the particular case so I don't think people need to be alarmed, it's a question of the law and protection of people accused of a crime."

Vowell says this is just one Circuit Court Judge's opinion and it's not binding in other courts. If the District Attorney appeals the ruling then it will go to the Attorney General's office and will ultimately be decided by the Court of Criminal Appeals or the Alabama Supreme Court. Vowell says if it is decided to be unconstitutional by higher courts then the legislature can remedy that by drafting a new statue that is less broad and incorporates more particulars.

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