I have a district court judge who has declared Penal Code sec. 21.12 unconstitutional on its face. This statute essentially prohibits sexual conduct between an employee of a school and a student at that school.

The defendant's argument (although they do not apply to him) is that the statute is vague and overbroad, for a couple of reasons. 1) the statute would prohibit sexual relationships between consenting adults even where there is no danger of coercion, for example, a young groundskeeper who has a relationship with a student who may even be older than him and over whom he has no authority. 2) The statute does not specifically require that the offender know that the person with whom he/she has sexual contact is a student at the school where he/she is employed, therefore the statute is vague as a person could violate it without knowing it.

The recent Lawrence v Texas case, 123 S.Ct.2472, in which the Texas sodomy statute was held unconstitutional, gives me some problems, in that the court says:

"This (statutes which touch upon sexual behavior in the home), as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."

The trial court was persuaded by the idea that certain hypothetical situations that could invike the statute would be viewed by most people as unfair, such as the groundskeeper example above, but I don't think this really settles the issue, as there are many statutes for which one cold construct hypothetically unfair examples without making the statute facially unconstitutional (such as prosecuting a man who buys dinner for his date with an expectation of sex afterwards for prostitution.)

Are there any Con Law experts out there who can at least point me in the right direction as to how to frame the question for the court of appeals (e.g. is it strict scrutiny or rational basis?) or better yet, has anyone else already researched this issue?

Any help would be greatly appreciated.

[This message was edited by Wes Mau on 10-20-05 at .]

Wes you might try the appellate division of the Harris Co DA's office since they argued an unrelated legal matter involving sexual issues before the supreme court several years ago. They might be able to eliminate some work for you. I can't recall his name, but the chief of the appellate div argued that sodomy matter.

It is interesting that 21.12 is not worded more like 25.02. But, I am not convinced that 21.12 does not require the actor to know the status of the victim. I believe 6.02(b) applies to the offense and that 6.03(b) probably requires knowledge that the victim is a person enrolled at the same school. See Musgrave, 608 S.W.2d at 191 (Roberts, J. dissenting); Zubia, 998 S.W.2d at 229 fn. 5 (Meyers, J. dissenting); but see Black, 26 S.W.3d at 897. Even if the state is not required to prove such knowledge, it appears that so long as the lack of knowledge can be raised as a defense, the statute would still be constitutional. Frye, 156 S.W.2d at 537.

Just because it may be true that "when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," does not mean the State must rely on evidence of coercion before it may criminalize certain types of sexuality. Either that statement is true or bigamy, prohibited sexual conduct, and prostitution are indeed likely to fall with the sodomy statute. Furthermore, it is unlikely that the "adult" referred to in Lawrence is going to be enrolled in a primary or secondary school. But, maybe the statute is overly broad to the extent it seeks to protect 17+ year olds.

When a statute implicates no constitutionally protected conduct, a challenge for vagueness is allowed only if the enactment is impermissibly vague in all of its applications. Furthermore, a "facial challenge" to the statute is allowed only if it is first impermissibly vague as to the defendant's conduct. Zaborac, No. 02-04-016-CV.

[This message was edited by Martin Peterson on 10-21-05 at .]

I have a case indicted under this statute that is being challenged as unconstitional by the defense. The attorney has been telling everyone that a judge in San Marcos found it to be unconstitional. I didn't really believe him, until now. The defense attorney filed a pretrial writ of habeas corpus, but my judge refused to hear the writ (I may have encouraged him to do this). The Texarkana Court of Appeals is considering his writ of mandamus regarding the refusal to have a hearing.

In the meantime, I am interested in knowing what happened in your case. I assume that you are appealing this ruling. If you don't mind, I would like to talk to you in more detail on the phone (I'm not much on forum discussions).

Wes, let me know if I can call you regarding your case.

Martin Braddy
District Attorney
8th Judicial District

We are appealing, and are before the 3rd court right now in 03-05-00489-CR, Ex parte Santiago Morales, for anyone who wants to follow the case.

Since when does a district just get to pronounce a statute unconstitutional?

Presumably, your evidence would show that the defendant induced the victim's sexual conduct by using his position of authority to create a situation in which she was afraid or unable to refuse the defendant's sexual advances. That should be enough to survive a challenge under Lawrence (or another of the Texas statutes is unconstitutional). See Dornbusch, 156 S.W.3d at 868.

Jane, obviously some trial judges agree with you. See Perez, 973 S.W.2d at 761, where the trial judge said: "the court doesn't think it's the appropriate place for the trial court to overrule or find unconstitutional or whatever a statute of the Texas legislature, and
believe[s] the appellate courts are the more appropriate place for that issue". But, at least when determining the issue on habeas corpus, I believe that they have authority to make such declarations.

quote:

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Originally posted by Martin Peterson:
Presumably, your evidence would show that the defendant induced the victim's sexual conduct by using his position of authority to create a situation in which she was _afraid or unable to refuse_ the defendant's sexual advances. That should be enough to survive a challenge under _Lawrence_ (or another of the Texas statutes is unconstitutional). See _Dornbusch_, 156 S.W.3d at 868.

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The problem with that is that the statute does not require the state to prove that. This was, in fact, the defendant's argument, in part--that the statute prohibits all sexual contact, not merely those where such coercion is, or may, exist. Our case in particular involves an allegation of force, and can also be prosecuted as a sexual assault, but we would like to prosecute under the educator/student statute because that way we will not have to prove lack of consent. You are correct, the statue is certainly not unconstitutional as applied to the defendant, but he can still raise the issue of unconstitutionality on its face.

My point is that, as in Dornbusch, the teenager's consent to sex does not de-criminalize the adult's conduct because the adult's conduct is a crime against the public, not against the teenager. Admittedly, that argument did not carry the day in Lawrence, but I think it does mean the State can choose to make the application of the statute much broader without regard to what the two individuals might think about what they are doing. Plus, Lawrence was concerned with counter-balancing the privacy of adults of equal stature behind closed doors. Some homosexual conduct is still illegal (e.g., under the public lewdness statute). The ruling in Limon confirms that so long as there is a rational basis the State Legislatures can go beyond the consent of the parties to control conduct.

But, of course, legislatures must still deal with the new requirement "that even when the articulated interest is the protection of minors, there still must be a connection between the State's interest and the classification and, if the burden would not be allowed if placed upon an adult, the State's interest must be unique to children." KSC Limon But, it seems to me a reasonable construction of 21.12 provides this type of connection and means that the relationship can be labelled "improper" based on the purpose of our educational facilities and the age of the participants.

[This message was edited by Martin Peterson on 10-22-05 at .]