Approximately a month since the Supreme Court instituted a change in the oath to incorporate civility to other attorneys, the Court seems to have forgotten that itself. In State v. Paschal, the Supreme Court came down with a monumental, and quite chippy, decision.
Appellant was convicted of four counts of second degree sexual assault and one count of witness bribery. Appellant was sentenced to 30 years in the Arkansas Department of Corrections. The convictions stem from a consensual sexual relationship Appellant had with one of his students that was 18 years of age. During the investigation, Appellant allegedly stated that he would give the student a few thousand dollars to have her drop the case.
The Court addressed three arguments on appeal. The first two relate to the witness bribery conviction. First, Appellant argued that his statement, even if true, did not violate ACA 5-53-108 because it was not encouraging the student to change her testimony. Six members of the Court found this argument unavailing; however, Justice Danielson found it had merit. Danielson agreed that the offer was at most an attempt to make the student uncooperative with police but not to change her testimony. Second, Appellant argued the trial court erroneously prevented him from introducing evidence of bias of a witness. The witness at issue was SC. SC was a friend of the student with whom the sexual relationship was with. SC was the witness that testified that Appellant offered money for the student to drop the charges. The evidence excluded was that Appellant’s family had sued SC’s family and taken a large amount of land away from them recently. All of the justices agreed this evidence should have been presented.
Finally, and most importantly, Appellant argued that under Lawrence v. Texas and Jegley v. Picado, he had a fundamental right to have consensual sexual relationships between two adults without interference from the government. The four justice majority agreed. The least restrictive means to effectuate the concerns of the State was to prevent people from using their trust and authority to coerce individuals into sexual relationships. Instead, here there were no allegations of coercion, and consequently, no compelling rationale to extend the law to cover teachers and adult students.
The real story in all of this is the back and forth language of Justice’s Hannah and Brown. In Justice Hannah’s majority opinion he refers to Justice Brown’s dissent as “perplexing,” “appalling,” “injudicious,” and “irresponsible.” Justice Brown, equally put off with Justice Hannah’s majority, refers to it as “preposterous.”
The entire court misses the mark with this opinion. The Court in Picado made it clear that adults have a fundamental right to have consensual sexual relationships between each other. The standard has always been strict scrutiny for fundamental rights. The majority stays true to the framing of the issue in Picado as one involving a consensual sexual relationship between two adults. When strict scrutiny is applied the law is nearly always upheld as it was here.
The dissent tries numerous approaches to discredit the majority. First, the dissent tries to frame the issue incorrectly. The dissent argues the issue is about consensual sexual relationships between students and teachers. That is absurd. That same logic would make Lawrence and Picado about consensual gay sexual relationships. Second, the dissent tries to avoid discussing the necessary standard of review, which is strict scrutiny. Instead, the dissent largely ignores standard of review altogether and focuses instead on the slippery slope of allowing students and teachers to engage in sexual relationships. Finally, the dissent cites cases from other states for the proposition that it is not unconstitutional to criminalize teachers and students sexual relationships. The problem with these citations is that the cited states do not recognize consensual sexual relationships as a fundamental right; consequently, these cases hold no weight. In fact, the dissent even quotes from a case stating that the statute met “rational basis review.” That is a far cry from the situation here where strict scrutiny applies.