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Closing the sexual consent loophole

By   /   December 8, 2009  /   Comments

Last Friday, I wrote about State Rep. (and attorney general candidate) Rob Teilhet saying he wanted to close the loophole in regards to teachers having sex with students being able to use the fact that it was consensual as a defense when charged with sexual assault of a person in custody.

I said then and I maintain that I have ZERO problems with the teacher in question losing their license to teach. I’m even willing to allow – though I’m not completely sold on this – that it should be a crime to begin with. ALL I am saying is that if a person is charged with sexual assault under this statute, the fact that the sex was consensual SHOULD be a valid defense that SHOULD be allowed at trial – as the Supreme Court of Georgia said last summer.

I just wanted to get my position on the matter crystal clear before going into the meat of this post. You see, there is already a bill that attempts to close this “loophole” – State Rep Kevin Levitas’ HB 886 pre-file.

Also please remember that, as always, this commentary is SIMPLY opinion-based commentary from a “civilian” with absolutely no legal training whatsoever. If you need legal advice on the subject matter at hand, PLEASE contact a member of the State Bar of Georgia!

With HB 886, the classifications of people who can be charged with sexual assault of a person in custody is dramatically enhanced – but not as dramatically as one might think upon first glance.

Under current law, a person who is a “probation or parole officer or other custodian or supervisor of another person” commits sexual assault against another person when said other person is “a probationer or parolee under the supervision of said probation or parole officer or who is in the custody of law or who is enrolled in a school or who is detained in or is a patient in a hospital or other institution”. In the other section – where even under current law, consent is NOT a defense of the crime, the victim must be “in the custody of law” or “detained in or is a patient in a hospital or other institution” or the perpetrator must be “an actual or purported practitioner of psychotherapy” who knows or should have known that the victim was a patient.

In other words, under current law ANY probation or parole officer who engages in sexual contact with ANY prisoner can be charged here, as can ANY teacher who has sexual contact with ANY student, and ANY “custodian or supervisor”-type person in a hospital who has sexual contact with ANY patient. That is a key thing to note, because it actually changes under HB 886.

HB 886 adds in several classes of people – employees, agents, or volunteers – of K-12 schools, probation or parole offices, law enforcement agencies, and hospitals into the classifications of people who can be charged under this law- in addition to “actual or purported practitioner[s] of psychotherapy”. It even uses the language from the current law regarding psychotherapists regarding “knows or should have known” that the victim was in a subordinate position.

HOWEVER, whereas current law prohibits a teacher at Albany High School from having sex with a student from Dalton High School (just as an example), HB 886 says that the victim must be under the care of the institution the perpetrator is associated with. In other words, the teacher at Albany High could have sex with the student from Dalton High without criminal penalty. Similarly, a doctor at Palmyra could have sex with a patient from Grady Hospital without criminal penalty.

That said, while HB 886 loosens the law a bit, it also tightens it even moreso – by removing the consent defense for EVERYONE still under this law. In other words, if a teacher at Crisp High has consensual sex with a student at Crisp High, that teacher can NOT use the fact that the sex was consensual as a defense under this law – and thus, the consent “loophole” is closed.

So I guess the question becomes: Is this a fair trade-off and compromise? It would no longer be a crime to have sex with a student who is not a student at your school, but if the person you have sex with IS a student at your school, you can no longer use consent as a valid defense.

While initially I was outraged that consent would be removed as a defense, working through this post and looking at the bill and thinking about it, I actually think that this is a decent compromise.

But hey, I’m just one man. What do y’all think?

Written by Jeff Sexton. Jeff Sexton co-owns the political blog SWGAPolitics.com and is a candidate for the Leesburg City Council.

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  • Published: 1778 days ago on December 8, 2009
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  • Last Modified: December 8, 2009 @ 9:38 am
  • Filed Under: Jeff Sexton
  • Tagged With: Government
 

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