Texas Teacher Accused of Having Sex With Student

This is a partial transcript of "The Big Story With John Gibson," June 12, 2006, that has been edited for clarity.

JUDGE ANDREW NAPOLITANO, GUEST HOST: A Texas high school teacher accused of having sex with a student could face up to 20 years in prison if convicted.

The state law that led to the arrest of Amy McElhenney criminalizes sex between educators and students. But the former Miss Texas contestant was allegedly involved with an 18-year-old student, whose status is that of a legal adult.

Joining us now is Dallas criminal attorney Jim Moore. Jim currently represents two other teachers accused under this law.

So, Jim, the charge, the alleged crime, is not sex with a child but sex with a student. What's the defense?

JIM MOORE, CRIMINAL DEFENSE ATTORNEY: The defense is this: We don't — actually, none of these cases have been adjudicated before a jury yet, so it's kind of an interesting new statute. It was enacted in 2003.

I have two teachers. One of the parties, the student was a child under Texas law, was 16 years old. So, that teacher is charged not only with the improper relationship violation but also of sexual assault of a child.

Another teacher, much like the female teacher from Hebron, Texas, was involved with a student who was 17. That is a consenting adult under Texas law.

So the statute now says that you could go to prison for up to 20 years for having sexual contact with another consenting adult.

NAPOLITANO: All right.

So, what do you argue? Do you go before a judge and ask the judge to throw the statute out because it conflicts with the right of 17-year-olds to have sex? Do you throw yourself at the mercy of the jury? How do you approach this one, Jim?

MOORE: We are going to ask the jury what they feel about this law, what they feel about this statute that was non-criminal until three years ago.

This was a legislatively created crime, so to speak, that makes it a crime just because of the relationship. And the statute doesn't address age. It doesn't address consent.

It simply says if one was a teacher in an institution and the other was a student at the same institution, it's a crime, without regard to whether the student was even in the class of that teacher.

NAPOLITANO: But, obviously, there's a problem with this throughout the nation. We seem to see cases all the time where teachers have sex with their students. Certainly, the legislature of the state of Texas has the power and authority and right and ability to write a statute like this, don't they?

MOORE: Absolutely they do. And they did.

NAPOLITANO: And so you're basically going to ask the jury to nullify the statute and say the punishment is too harsh. Look at this young woman. You don't want to send her to jail for 20 years because she did something, which three years ago, before the statute, was perfectly lawful.

MOORE: Not only was it lawful, it was consensual. And it's still consensual. The student involved here was engaged in that activity with consent.

And, no, I'm going to ask the jury to do what they think is appropriate, given the facts of this case.

NAPOLITANO: Dallas criminal attorney Jim Moore, thanks very much.

MOORE: Thanks for having me.

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