Is Alabama's school employee-student sex law constitutional? A judge will decide

After hearing oral arguments this afternoon about the constitutionality of Alabama's law prohibiting school employees from having sex with students, Morgan County Circuit Judge Glenn Thompson said he has "a lot of reading to do."

Thompson said he needs to study written arguments that previously were submitted before he rules on whether the law is unconstitutional.

The question of constitutionality is being raised by defense attorneys for a former Decatur High School teacher and an ex-aid who worked at Falkville High School. Both schools are in Morgan County.

Carrie Witt, 43, taught history, psychology and social studies and coached girls' golf and junior varsity cheer at Decatur High. David Solomon, 26, was a contract aid at Falkville High. Each was charged in March 2016 with a class B felony on accusations they had sexual relationships with students under the age of 19. In both cases, authorities have said the students had surpassed the age of consent, which is 16. But according to a 2010 Alabama law, consent is not a defense.

If convicted, the teachers face up to 20 years in prison for each count. They also would be required to register as sex offenders.

The main arguments of the defense, which were presented to the judge today by attorney Robert Tuten, is that the law is too broad and singles out teachers and other school employees for prosecution that other adults do not face. Tuten is one of two attorneys representing Witt, but he made arguments on behalf of both cases.

The law, Tuten argued, doesn't not specify student-teacher sex as illegal, but rather says school employees can't have sexual relationships with students. In that case, Tuten said, a janitor or groundskeeper could be charged with a felony for having sex with a student. Such employees do not necessarily maintain control or authority over students, Tuten said.

Winfield Sinclair, an assistant attorney in the Alabama Attorney General's Office, arguing on behalf of the state, defended to the law.

"We expect a student to obey any school official about school rules," Sinclair said, rebutting Tuten's janitor example.

Tuten compared the law to previous statutes that outlawed interracial marriage and same-sex relationships. In those cases, he said, the courts have ruled, "You can't legislate morality."

Tuten told the judge he isn't admitting any wrong doing on behalf of his client or advocating for relationships between teachers and students. But he argued the law in unnecessary because other laws prohibit crimes like forcible rape, sexual misconduct, statutory rape and sexual abuse -- without singling out school employees.

Sinclair told the judge other figures of authority, including jailers, corrections officers and probation officers also are prohibited by law from having sex with certain people -- inmates and clients. In those situations consent is not a defense, either. Sinclair also cited Alabama's laws against incest, which also do not allow consent as a defense.

The school employee-student sex law, Sinclair argued, is designed specifically to protect victims from a potential abuse of power. Students, who are required to attend school from ages 6-17, should be focused only on education -- not breakups, jealousy, potentially angry parents, being singled out by a teacher or whether they are being groomed by a teacher for sex, Sinclair told the judge.

Parents, Sinclair said, should be able to send their children to school knowing "the teacher is not replenishing their dating pool."

When asked by Judge Thompson, Sinclair said lawmakers in 2016 amended the 2010 law to exclude college students from the statute's protection. When the law was initially passed, there was no specification about whether the ruling applied to college students and workers.

However, Tuten noted the defendants were charged before the law was amended.

Thompson also questioned Sinclair about whether the students have to attend the same school as the employee for a crime to be committed. Sinclair said the law does not specify.

Attorney James Mason, who represents Solomon, told Thompson he didn't need to add anything to Tuten's argument. Mason asked the judge to consider a written brief that was submitted on behalf of his client.

Thompson said the ruling, which he will issue later, will apply to both cases because the arguments and issues are essentially the same.

"There's no way I can announce anything today," Thompson said. "I've got a lot of reading to do."

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