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Educators and Sexual Misconduct
11/1/2010
Carolyn Stone, Ed.D.
Monday November 01, 2010
by: Carolyn Stone, Ed.D.

Section: Inside Insight


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Scenario:
You are a school counselor with a 23-year-old colleague who is in her first year as a school counselor. In January, the school discovers through text messages that she has been having a sexual relationship with one of her 17-year-old students. You are outraged that she has abused her student and her position of trust in such a grievous way and stunned when you learn that she will not be criminally charged. How can it be that no laws have been broken?

From October 2009 to December 2009, a 23-year-old Florida high school counselor was engaged in a sexual relationship with a 17-year-old student. Once discovered she was immediately fired under the “97 Day” policy, meaning the school district can fire without cause during the first 97 days of hire. However, the school counselor was not guilty of statutory rape. Florida, like a vast number of states, identifies a 17-year-old to be “age of consent” or legal to enter a sexual relationship. In Florida, as in other states, a significant age difference between the perpetrator and the abused can also be statutory rape; however, in Florida 17 year olds and 23 years old did not meet the age difference that would trigger statutory rape.

 

Florida Statute: The age of consent is 16.( s.794.05) Unlawful sexual activity with certain minors.-- (1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree . . . ."

Should there be separate laws making it a felony if a person in a position of trust and authority, such as an educator, engages in sexual relations with a student? In 15 states, specific laws have been passed to criminalize educator-student relationships even when the student is of the age of consent. Alabama, Arizona, Arkansas, Connecticut, Iowa, Louisiana, Maine, Missouri, New Hampshire, New Jersey, New Mexico, Nevada, North Carolina, Ohio and Texas have specific laws aimed at educators who prey on students. For example, without equivocation the Texas statute makes it clear that educators cannot have sex with their students regardless of the student’s age.

 

Texas Statute: § 21.12. Improper Relationship Between Educator and Student. (a) An employee of a public or private primary or secondary school commits an offense if the employee engages in sexual contact, sexual intercourse or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works and who is not the employee's spouse. (b) An offense under this section is a felony of the second degree.

However, even with such laws, states find it difficult to prosecute when the student is an adult or 18, as in the case of a 25-year-old former Miss Texas contestant who was arrested for having a sexual relationship with an 18 year old in the high school where she taught. Under the law, the improper relationship warranted a second-degree felony charge and a possible 20-year prison sentence, but in October 2006, a grand jury refused to indict the teacher, and the second-degree felony charge against her was dismissed. 

Perhaps if Florida had a specific statute like Texas then the 23-year-old perpetrator would have been charged immediately. Instead, she was able to quickly secure a job in a neighboring district, and within weeks she was back in a high school. She was eventually arrested and charged under another more-difficult-to-prosecute Florida statute regarding government employees who have sexual relations with a minor over whom they have control. 

Are such tough laws necessary? Are there ever extenuating circumstances where educators and PK-12 students should be allowed their relationship in peace? Is there ever a possibility that sex between a student and educator is consensual? Is it even more egregious if the educator is a school counselor?
Ethical standards, training, certification language, professionalism and basic common sense dictate that there is never a situation that considers a sexual relationship between a PK-12 educator and his or her student as consensual. Even is the student is the aggressor, the educator is the adult, in a position of power, control and trust and must act as a professional. It was especially an egregious act for the school counselor because of the added trusting relationship of one-on-one individual counseling.
In June 2010 the ASCA Delegates from 50 states strengthened this stance when they voted in new Ethical Standards A.1.g and A.1.h.:

A.1. Responsibilities to Students: Professional school counselors:
g. Understand that professional distance with a student is appropriate and any sexual or romantic relationship with a student whether illegal in the state of practice is considered a grievous breach of ethics and is prohibited regardless of a student’s age.
h. Consider the potential for harm before entering into a relationship with a former student or one of their family members.

I have researched the state statutes in all 50 states and divided those that apply into two categories:
Sexual conduct laws specifically pertaining to child/educator: This category includes the 15 states that have specific laws (Alabama, Arizona, Arkansas, Connecticut, Iowa, Louisiana, Maine, Missouri, New Hampshire, New Jersey, New Mexico, Nevada, North Carolina, Ohio and Texas).
Laws pertaining to those in a position of power: This category includes the states without specific laws naming educators but with laws about persons in a position of authority or control over another person (Delaware, Florida, Illinois, Kentucky, Montana, New Hampshire, New Jersey, North Dakota, Tennessee and Vermont).

All states not listed in either category are states without either a sexual conduct laws specifically pertaining to child/educator or laws pertaining to those in a position of power.

Look to see which category your state falls into, and see if your state school counseling association has some legislative work to do. School counselors are political activist for student rights. If your state is not already among the 15 to have legislation aimed at educators, consider making this part of your state association’s legislative platform. This advocacy will only help to position school counselors as the voice of reason for protecting and securing our children’s well being.

Carolyn Stone, Ed.D., is co-chair of the ASCA Ethics Committee and a professor at the University of North Florida. She can be reached at cstone@unf.edu.

The author thanks University of North Florida graduate assistants Michael McNamara, William Tunstill, Tiffany Singleton and Jenna Senkowsky for their research assitance with this article.

VIEW the individual state statutes pertaining to sexual conduct.www.schoolcounselor.org/magextras