You may remember the school sex bill that set off our unconstitutionality alarm earlier this year--the one that criminalizes sex between high school employees and consenting adult students. Well, the Senate version died, but a House version passed both chambers by a wide margin and was signed by the Governor on Monday.
The bill--which might as well have been written on discarded scraps of the Constitution--would criminalize a few scenarios, the most notable being sex between school employees and students more than five years their junior. This was in response to the Division II Court of Appeals overturning a teacher's conviction for first-degree sexual misconduct, when the teacher had had sex with a consenting 18-year-old student. Now, under HB 1385, not only would that scenario result in a felony, but so would one in which a 26-year-old high-school landscaper had sex with a 20-year-old student. The landscaper would now be a sex offender.Also, in case you're wondering, it's not illegal for a 26-year-old boss to have sex with her 20-year-old employee. Another thing worth noting is the US Supreme Court opinion Lawrence v. Texas, when the majority held that Texas' gay sodomy law infringed on the ability of consenting adults to engage in private sexual activity, and thus violated Constitutional right to liberty.
Overall, the bill received 126 votes for and 16 votes against. Among the few dissenters was Kirkland Rep. Roger Goodman, who called it "my least favorite bill of the entire session. I remember after we passed it, roaming around the House chamber, muttering to my colleagues that we just criminalized consensual sexual relations between two adults for the first time in state history." [It appears that the state enacted sodomy laws back in the day.]
Appellate attorney David Zuckerman had a similar reaction to the earlier version of the bill (which contains the same provisions). "I think there are serious constitutional problems with this bill," he said. "It seems to me this violates the rights to intimate association and rights to privacy that were recognized in Lawrence v. Texas."
The ACLU wasn't immediately available to comment, and the Attorney General's office is checking whether they were consulted about the bill's constitutionality.