dissenting in part and concurring in part.
The majority holds that the following statute is unconstitutional as applied to a thirty-six-year-old teacher who was engaged in a sexual affair with an eighteen-year-old high school senior for five months. I disagree and would not hold that the statute is unconstitutional as applied.
| iSThe statute in question reads as follows:
(а) A person commits sexual assault in the second degree if the person:
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(б) Is a teacher in a public school in a grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is:
(A) A student enrolled in the public school; and
(B) Less than twenty-one years of age.
Ark.Code Ann. § 5-14-125(a)(6) (Repl. 2009).
The majority’s analysis is wrong for several reasons. As an initial matter, it erroneously equates the adult relationship in Jegley v. Picado, which involved consenting same-sex couples who clearly were on an equal footing as adults, to a student-teacher relationship in high school where the teacher is without question the authority figure. See Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). In doing so, the majority skews and minimizes the role of a teacher and views a sexual affair between a high school student and teacher as merely one between consenting adults. That view distorts the facts of this case and discards the valid objective of the General Assembly to criminalize this conduct.
The majority hangs its hat in part on the fact that the relevant subsection cited above does not use the words “trust or authority” in describing the relationship between a teacher and student in grades K through 12. What the majority suggests is that without those words, a teacher may not be aware of the fact that he or she holds such a position vis-á-vis a student, which apparently, according to the majority’s reasoning, somehow permits that unknowing teacher to have sex with an eighteen-year-old student. That of course is preposterous. Any teacher knows that he or she occupies a position of trust or authority in the school. This court has recognized that teachers occupy a position of authority over their students. See Logan v. State, 299 Ark. 266, 273, 773 S.W.2d 413, 416 (1989) (recognizing the “authority relationship” between a teacher and a minor student in the context of a rape conviction); Smith v. State, 354 Ark. 226, 238, 118 S.W.3d 542, 549 (2003) (“School district employees are authority figures to minor children ... The State has an interest in the general welfare of children, and it certainly has an interest in making laws which punish school district employees who abuse their positions of trust and authority to facilitate inappropriate relationships with children.”). For the majority to say that such authority vanishes when a student turns eighteen ignores the realities of the student-teacher relationship.
The focus of the majority opinion is on a right to privacy gleaned from our Picado decision. Certainly in Picado we held that a right to privacy exists for consenting adults to have sexual relations in the privacy of their homes. See Ark. Dep’t of Human Servs. v. Cole, 2011 Ark. 145, at 14, 380 S.W.3d 429 (recognizing the fundamental right of privacy to engage in private, consensual, noncommercial intimacy in the privacy of the home). But this court has never held or even suggested that a fundamental right of privacy exists to enable high school teachers to have sex with the school’s enrolled students. In doing so, the majority either overlooks or dismisses the inherently unequal posture that a student is in with respect to a much older teacher. Here, Paschal had been the student’s teacher when she was a sophomore and junior in high school. She then became his teacher’s aide, and they began their affair after that during her senior year. The evolution of this sexual relationship in the school setting is 1 ^vastly different from that of the consenting adults in Picado and Cole.
When faced with this same issue of a student-teacher relationship, other jurisdictions have determined that restrictions on these relationships do not infringe on the right to intimate association or privacy. In fact, the Sixth Circuit Court of Appeals has recognized that policies restricting student-teacher sexual relationships are not even entitled to strict scrutiny review, which obviously accompanies a substantial burden on a fundamental right. See Flaskamp v. Dearborn Pub. Sch, 385 F.3d 935, 942 (6th Cir.2004). As the Flaskamp court wrote, only government action that has a “direct and substantial influence” on intimate association receives heightened review. Id. (citing Anderson v. City of LaVergne, 371 F.3d 879, 882 (6th Cir.2004)). Government action has a “direct and substantial influence” on intimate association “only where a large portion of those affected by the rule are absolutely or largely prevented from [forming intimate associations], or where those affected by the rule are absolutely or largely prevented from [forming intimate associations] with a large portion of the otherwise eligible population of [people with whom they could form intimate associations].” Flaskamp, 385 F.3d at 942 (brackets in original) (citing Vaughn v. Lawrenceburg, 269 F.3d 703, 710 (6th Cir.2001)).
The Sixth Circuit went on to say in Flaskamp:
[I]n view of the importance of prohibiting teachers and students from beginning romantic relationships, a school board could act prophylactically in this area by prohibiting sexual relationships between teachers and former students within a year or two of graduation. Such a policy would prevent high school seniors from being perceived as prospects eligible for dating immediately after graduation; it would prevent interference with the education of other family members who still may be in 121 school ...; and it would curb sexual harassment liability arising from claims that a policy against student-teacher relationships is not adequately enforced.
Id. at 944 (emphasis added). Recognizing that Flaskamp did not involve a criminal statute, the myriad dangers of permitting student-teacher sexual relationships recognized by the Sixth Circuit apply equally to the facts of the case before us and reinforce the importance of the State’s interest in protecting students.
The Connecticut Supreme Court has also determined that regardless of whether a fundamental right of sexual privacy exists, it would not protect sexual intimacy in the context of an inherently coercive relationship, such as the teacher-student relationship, wherein consent might not easily be refused. State v. McKenzie-Adams, 281 Conn. 486, 915 A.2d 822, 832 (2007) (emphasis added), overruled on other grounds by State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012). Along the same lines, in State v. Hirschfelder, 170 Wash.2d 536, 242 P.3d 876 (2010), a high school-choir teacher who was thirty-three had sexual intercourse with one of his students. The student was eighteen at the time. The teacher was charged under a statute that criminalized sexual intercourse by school employees with a registered student of the school who was at least sixteen years old and not married to the employee, if the employee is at least sixty months older than the student. Id. at 878. Under Washington’s law a registered student included persons up to the age of twenty-one. Id. at 878-80. Interestingly, when analyzing the equal-protection challenge to the statute, the Hirschfelder court noted that “[ujnderstandably, [the teacher] does not claim that K-12 school employees have a fundamental or important right to sexual relations with registered students.” Id. at 883 (emphasis added).
CJn the face of this authority, the majority in this case cites no case law for its singular proposition that a right to privacy exists to enable a high school teacher to have sex with an enrolled student. That, in itself, is telling.
The statute at issue in this case does not infringe on the non-job-related sexual activity of Paschal, or any other teacher, and it does not directly or substantially burden his right to engage in acts of sexual intimacy with other consenting adults. The State became interested in his sexual activity only after the student reported it. She testified that the relationship changed after she became Paschal’s aide and began working in his classroom during eighth period. She further testified that she and Paschal began talking on a more personal level during that time and that he told her he needed a babysitter over Christmas, and she offered to babysit. She added that sometimes she and Paschal would go to his home after eighth period and that he told her she could “never say anything” about being at his home. The affair lasted for about five months.
Without question, Paschal used his job as a teacher to get close to an enrolled student to gain her trust and to propose that she come alone to his home after school. Even assuming that Paschal is entitled to strict-scrutiny review of the statute, which I do not for a moment concede, the statute is narrowly tailored to serve the State’s compelling interest in maintaining the integrity of the educational system because it only targets sexual conduct that occurs between teachers and enrolled students and does not directly or substantially burden non-job-related sexual conduct of teachers. See Cole, 2011 Ark. 145, at 19, 380 S.W.3d 429 (holding that the burden on the fundamental right to sexual intimacy is direct and substantial when the State requires a person to give up the right entirely in order to qualify as an adoptive or foster parent).
Once this opinion is handed down, there will be nothing to prevent sexual contact between high school teachers and enrolled students who have turned eighteen. This will cause significant disruption in our high schools and have a deleterious impact on education in general and the teacher-student dynamic in particular. That is completely contrary to the State’s duty, which is to protect its students in the public school setting against sexual advances and exploitation by teachers. That duty has been completely jeopardized and undermined by today’s decision.
I respectfully dissent on this point and would affirm the conviction and sentence for second degree-sexual assault.
On the issue of admission of evidence to show S.C.’s bias, which was disallowed, I agree that the circuit judge erred on this point. Accordingly, I would reverse the judgment for witness-bribery and send that count back for further proceedings.
GUNTER and BAKER, JJ., join.