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April 1, 2012

Did severe sentence impact Arkansas Supreme Court's teacher-student "right to sex" ruling?

As noted in this Reuters article, the "Arkansas Supreme Court struck down a state law on Thursday that banned teachers from having sex with students under age 21, overturning a sexual assault conviction against a former teacher who had a consensual relationship with an 18-year-old student." The Arkansas Supreme Court's ruling in Paschal v. Arkansas, 2012 Ark. 127 (Ark. Mar. 29, 2012) (available here), is based on the Arkansas Constitution and a prior state ruling concerning right to sexual autonomy among consenting adults.  Here is more on the ruling (with my emphasis added) via the Reuters report:

In a 4-3 decision, the court vacated the conviction against David Paschal, a former teacher in the Elkins School District in northern Arkansas, because the girl was legally an adult during the relationship.

For about five months, Paschal, then 36, had a consensual sexual relationship with the female student at Elkins High School, according to court documents.  The girl had been a student of Paschal in tenth and eleventh grades, and she later became his classroom aide and offered to babysit his children.  The two began their affair in 2009, when she was a senior, and Paschal was arrested the following year.

In 2011, he was convicted of four counts of second-degree sexual assault and one count of bribing a witness at a jury trial last year. He was sentenced to 30 years in prison.

"Regardless of how we feel about Paschal's conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts," Chief Justice Jim Hannah wrote in the decision.  The issue presented to the court hinged on "Paschal's fundamental right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult. We hold that it does," the majority said.

In the dissent, Justice Robert Brown wrote that the decision "minimizes the role of a teacher." He also argued that the state has a general interest in the ensuring the welfare of children in school against teachers who abuse positions of trust and authority.

Neither the majority nor the dissent in Paschal makes any significant mention of the sentence that had been imposed on this defendant for having sex with his 18-year-old student.  But, as suggested by the title of this post and the fact I stressed above, I suspect that the severe sentence given to David  Paschal played a role — perhaps a large role — in convincing four Arkansas justices to strike down his convictions.  I really wonder if this case comes down the same way had the defendant received, say, a prison term of only three years rather than a term of three decades.

April 1, 2012 at 11:13 PM | Permalink


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"I really wonder if this case comes down the same way had the defendant received, say, a prison term of only three years rather than a term of three decades."

I would hope so.

The problem with the dissent's reasoning is that there is no discernible difference between an 18 year old in high school and an 18 year old in *college*. In fact, I started college when I was 17. So if a high school teacher can be convicted of these crimes, so could a college professor. "In loco parentis" applies as much in college as it does in high school.

I *do* think there is an issue with abusing and issue of trust and authority. But that should be the crime, not the sex. And that's the fundamental problem. The law criminalizes the wrong conduct.

In any event, I think it's time we started realize that it's not just death that is different in the law but sex is too. It's a shocking sadness that thee people voted with the dissent. Next up, let's ban dirty dancing!

Posted by: Daniel | Apr 1, 2012 11:54:03 PM

Doug, Isn't this result compelled by cases like Lawrence v. Texas?

Posted by: dm | Apr 2, 2012 12:25:14 AM

Volokh analyzed Lawrence in the arena of sex between licensed professionals and patients.


The Supremacy's Dad was an expert who argued that sex with patients, even if slaves, was prohibited for 3000 years to serve a public health purpose of promoting referrals, by suppressing sexual exploitation. It would be analogous to allowing bank tellers to help themselves to money from their money trays. Customers would stop depositing their money. An appellate court shot that argument down, unbelievably.


Posted by: Supremacy Claus | Apr 2, 2012 6:52:44 AM

There is another issue. Namely, the student's ability to engage in such conduct. Not to say that this isn't creepy, but 30 years is nuts . . . .

Posted by: federalist | Apr 2, 2012 8:20:57 AM

How much of the 30 year sentence was because of the conviction for one count of bribing a witness at a jury trial? That's both pretty serious and makes me wonder if there was some manipulation going on with the 18 year old in the relationship or babysitting.

Posted by: Paul | Apr 2, 2012 8:36:08 AM

Certainly this case would be tremendously different if she were his student during any of the sexual relationship. I had not realized that from the post on the VC about this ruling. With that in mind I doubt the length of the sentence mattered very much to the majority and I am amazed that the dissent could have any problem with the underlying conduct. Same with a university professor, as I understand it the ethical problem is sex with a student in a professors classes (or perhaps likely to be so in the future), not sex with university students in general.

I guess the question if talking about a case where the student is actually in some of the teacher's classes during the relevant period is how much proof would the court require that some nefarious end was being achieved. Would the mere fact of such a relationship be enough, would they require the element of abuse of trust be submitted to a jury?.

Posted by: Soronel Haetir | Apr 2, 2012 10:21:22 AM

The bribery got a $4000 fine. Each sex count got ten years. Absurd really. Would child molestation with a 10 year old get you 30 years in many places? Murder without particularly heinous circumstances?

Daniel argues that the "issue of trust and authority" should be focused upon here, not "the sex." But, the law doesn't merely make "sex" a problem. If she wasn't a K-12 student (and is a high school diploma a more arbitrary line than an age requirement?), the law would not be violated. I'm not sure how much more "trust and authority" is necessary here. He's a teacher at her school.

As to Lawrence v. Texas, that did not include those "situated in relationships where consent might not easily be refused." The opinion notes "consent" was present. But, the very issue here is that power differentials between teachers and students, as in other cases such as psychiatrists and patients, make consent a somewhat iffy situation.

The punishment is over the top and I can see that it might be reasonable to not make this criminal if there was not more evidence (for students in a class or a teacher's aide, it would be very easy to justify) and yes, we treat college different, even though sometimes (like me) you are not yet 18 when you get there. Being in college like leaving the home in other cases makes you an "adult" for legal purposes in certain cases.

Posted by: Joe | Apr 2, 2012 11:54:10 AM

It seems to me that this should not be a crime at all but is an ethical issue that schools and colleges need to address. There should be an immediate dismissal in cases involving sex with any student. Where it becomes a crime (the student is underage), then let law enforcement handle it.

Posted by: TarlsQtr | Apr 2, 2012 12:30:56 PM

I rather hope the the Arkansas court did consider the severity of the sentence. Decision making in a vacuum and in isolation can lead to all manner of mischief. I don't think the ruling was compelled by Lawrence, but even if the 8th Amendment is basically a dead letter, it should at least inform applications of other precedents.

Posted by: ohwilleke | Apr 2, 2012 7:29:17 PM

30 years in prison for consensual sex WITH AN ADULT?!?!?!?!?!?! This is sick...they better have overturned it. What the hell...is this Arkansas or Tehran???

Posted by: G4Change | Apr 6, 2012 2:35:51 AM

Its still against the law in oklahoma they even make people register as a sex offender for life which brings on a whole bag of crap with it like putting sex offender on your license, taking a sex treatment class, and much more. All the stuff they put people through for consensual sex with an adult is very unconstitutional and needs to be changed. Taking their job and license should be sufficient.

Posted by: ChangeNeeded | Jul 9, 2012 10:56:46 PM

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