SEATTLE — Washington state law does not bar teachers from having consensual sex with 18-year-old students, an appeals court ruled Tuesday in dismissing a case against a former Hoquiam High School choir teacher.
The teacher, Matthew Hirschfelder, was charged with first-degree sexual misconduct with a minor, accused of having sex with a graduating senior in 2006. He challenged a judge’s refusal to dismiss his case, noting that because the student was 18, she wasn’t a minor.
A three-judge panel of the Washington Court of Appeals unanimously agreed. While the law was written vaguely, a review of the legislative history clearly shows that lawmakers only intended to criminalize contact between teachers and 16- or 17-year-old students — not those over 18, the court said.
The state’s code of professional conduct for teachers still prohibits any sexual advance toward or contact with pupils, whatever their age, and teachers can be fired for it. Sexual contact with students younger than 16 is considered child rape or molestation; the age of consent in Washington is 16.
“There’s nothing equivocal about teacher ethics: You don’t have sex with a student, period,” said Hirschfelder’s attorney, Rob Hill of Olympia.
Hirschfelder, who was 33 at the time, denies any sexual relationship occurred.
Before 2001, state law barred anyone at least five years older than a 16- or 17-year-old from abusing a supervisory relationship to coerce the teen into having sexual relations. That law applied to teachers as well as anyone else — such as a teen’s boss or coach.
However, the law required prosecutors to prove that coercive tactics were used, such as the promise of a better grade — making it difficult to go after teachers who had relations with a student they didn’t directly supervise.
In 2001, lawmakers decided they wanted to close that loophole. They passed a bill outlawing all sexual contact between teachers and students at the same school who are “at least 16 years old.” The new language didn’t clarify what happened if the student was over 18.
The Grays Harbor County Prosecutor’s Office argued that the law should be interpreted as covering all students older than 16.
In an opinion authored by Judge Marywave Van Deren, the appeals court rejected that argument, saying the law was intended to criminalize only contact with 16- and 17-year-old students, and that the age of majority in Washington is 18.
“The name of the statute is ‘sexual misconduct with a minor,’ ” Hill noted.
But some legislators are already set on changing the law. On Monday, six state representatives introduced legislation that would make it a crime punishable by a mandatory minimum of five years in prison for a teacher to have sex with a student up to age 21, as long as the teacher is five years older than the student and at the same school. The bill has been referred to the House Public Safety and Emergency Preparedness Committee.
Rep. Larry Haler, R-Richland, the prime sponsor of the bill, said he offered it at the request of the Richland School District, after a judge in Benton County dropped a sexual misconduct charge against a Richland High teacher because the teacher’s alleged victim was 18.
“This is a real concern of mine, and with the court decision today, that just strengthens this bill,” Haler said. “We need to protect our students as long as they’re in our public schools, irrespective of age.”
He noted that developmentally disabled students, who often remain in school until age 21, are particularly vulnerable, but all students over 18 should be covered by the law. Otherwise, teachers can groom students or offer them quid-pro-quos, only to enter improper relationships after they turn 18.
Grays Harbor County prosecutor Stew Menefee did not immediately return a call from The Associated Press, but he told The Daily World newspaper of Aberdeen on Tuesday that he would consider appealing to the state Supreme Court.
Several teachers have been prosecuted under the law for allegedly having sex with 18-year-old students, said Seattle lawyer David Allen, who filed a friend-of-the-court brief on behalf of the Washington Association of Criminal Defense Lawyers.
In 2007, former Hoquiam wrestling and football coach Todd Hoiness was sentenced to five months in jail after he pleaded guilty to sexual misconduct with an 18-year-old student.
Allen argued that criminalizing sex between teachers and over-18 students would likely be unconstitutional. The state shouldn’t be reviewing the otherwise-legal personal decisions of consenting adults, he said.
Hirschfelder has not been able to work as a teacher since late 2006, when he was placed on administrative leave pending an investigation by the school board. He was arrested and charged in spring 2007, after the former choir student told police she had a monthslong affair with him that began shortly before she graduated.
Hill said Hirschfelder has been tuning pianos to make ends meet. His case did not go to trial because it was stayed pending the appeals court ruling.
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