dissenting in part and concurring in part.
I concur with the majority’s conclusions that Paschal’s conviction for witness bribery is supported by substantial evidence, but that the trial court erred in refusing to admit evidence of bias of S.C. However, I do not agree with the reversal and dismissal of his conviction for sexual assault in the second degree based on the majority’s holding that Arkansas Code Annotated section 5-{14-125(a)(6)24 is unconstitutional. Because I believe the majority’s conclusion that Paschal has a constitutionally protected fundamental privacy right to have sexual contact with an 18-year-old student at the school where he teaches is absurd, I dissent.
Paschal argues that section 5-14-125(a)(6) is unconstitutional as applied to him. He asserts that because he and the student, A.D., were adults in a consensual sexual relationship, the statute infringes on his fundamental right to privacy under the U.S. Constitution, see Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and the Arkansas Constitution, see Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). He contends that because the statute infringes on a fundamental right, this court should analyze it under strict scrutiny. The majority agrees.
Paschal was convicted under the version of Arkansas Code Annotated section 5-14-125(a)(6) (Supp.2009), which provided, in pertinent part, that a person commits second-degree sexual assault if the person 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 student enrolled in the public school and less than twenty-one (21) years of age.” The effect of striking this provision in our Code is to legalize sexual contact between teachers and students who have not reached the age of 21. The majority does this by relying on the premise that a teacher and a student have a privacy right to engage in consensual sexual contact. I disagree. The right to privacy does not authorize such behavior between a high-school teacher and a student who is required under our laws to be in that school. See Ark. Code Ann. § 6-18-2111 ^(requiring mandatory attendance for students in grades 9 through 12).
The majority draws a distinction between the instant case and our decision in Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006). In Talbert, a minister was convicted of third-degree sexual assault. He argued that the State cannot intrude into an individual’s right to engage in private, consensual sex with other adults, citing Lawrence, supra, and Jegley, supra. This court emphatically concluded that the statute did not infringe upon Talbert’s right to have private, consensual sex with other adults. Rather, the “conduct criminalized by the statute [in Talbert ] is the use of trust and authority as a minister over individuals to engage in unwanted sexual activity with them.” Talbert, 367 Ark. at 270, 239 S.W.3d at 512. The statute before us now similarly criminalizes the conduct of a K-12 public-school teacher in having sexual contact with another person who is a student in the public school and less than 21 years of age. Unlike Talbert, section 5-14-125(a)(6) does not include the language stating that the defendant “is in a position of trust or authority.” However, we have previously recognized that 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.” Smith v. State, 354 Ark. 226, 238, 118 S.W.3d 542, 549 (2003). In Smith, the statute at issue penalized school-district employees or others in a position of trust or authority. It is illustrative of the fact that the legislature did not see a need to penalize only those school-district employees who were in a position of trust or authority: the relationship between ^teacher and student is inherently one that places the teacher in a position of trust or authority by its very nature. By concluding that a teacher has a fundamental privacy right to engage in sexual contact with his 18-year-old student, the majority condones the misuse of this position of trust or authority. I can not agree that a teacher has a right protected by our constitution to engage in sexual contact with a student.
I conclude the statute does not involve a fundamental right. If a statute does not burden a fundamental right or targets a suspect class, the legislative classification will be upheld if it bears a rational relation to some legitimate result. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); see also Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918 (1991). The Texas Court of Appeals considered a challenge to a similar statute, and in concluding that the statute was constitutional, stated as follows: “We think it clear the State has at least a rational basis for passing the statute at issue. Protecting students in primary and secondary schools — even those of age — from the pressures, emotional strain, conflicts, distractions, and other difficulties brought on by sexual conduct with persons, not their spouse, employed at the students’ schools is within the State’s legitimate interest.” In re Shaw, 204 S.W.3d 9, 17-18 (Tex.App.2006). I would likewise hold that the State has a legitimate interest in protecting high-school students from the difficulties that arise from sexual contact with teachers at their schools, conclude that the statute is constitutional, and affirm Paschal’s convictions for sexual assault.
BROWN and GUNTER, JJ., join.