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.