LOS ANGELES – Should it be a crime for a public school teacher to have sex with one of her students?
Is that a hard question?
For me it isn't. The answer is yes.
It's a particularly easy question where the state, in this case Texas, has passed a simple and straightforward law that makes it a crime, without regard to the age or gender of the student.
But don't tell that to some of my friends on the panel last night of Fox's "On the Record," where I was all alone with host Greta van Susteren in being willing to enforce the law against a 25- year old former beauty contest participant who had sex with one of her students.
What got into my fellow panelists?
Is it about age? Or about gender?
Here are the facts. You decide.
Amy McElhenney, age 25, was arrested on May 25 for allegedly having sex with one of her male students at Hebron High School in Carrollton, Texas. Under a Texas law passed three years ago, teachers who have sex with their students may be convicted of a felony and sent to prison for up to 20 years.
The boy in question was 18.
If he had not been a student, he would have been considered a consenting adult. But he was a student.
When the Texas law was originally drafted, it was limited to students 17 years of age and under. But when the bill came to the floor of the house, it was amended, and the age provision was dropped.
As Representative Warren Chisum, who proposed the amendment dropping the age limit explained, "If they're a student, I just think they're off bounds regardless of their age. I felt like if we didn't do that, we just virtually made it open season on students that are 18-years-old."
Most teachers don't need a criminal law to tell us that it's wrong to have sex with our students no matter how old they are (mine are in their 20's and 30's, and it's still wrong). Teachers have power over students, which undercuts the notion that consent can be given freely; we control their lives, which means it's not fair to the individual student, or to the other students in the class; it's an abuse of the teacher's power, and compromises both the real and perceived fairness of that student's grades and of any overall curve in the class.
True love can wait until the end of the term.
Obviously, the younger the student, the worse the injury, but abuse of power is about power, not age. Besides, for purposes of their relationships with teachers, high school seniors, even if they are 18, are still kids, as the legislature clearly concluded, and prosecutors are not free to second guess them.
But don't tell that to my fellow panelists. Because there I was, all by myself, in arguing that McElhenney should be subject to felony charges.
Would it have been different if it were a male teacher and an 18-year-old girl?
If the teacher were less attractive?
There is no question that there is a double standard in sex abuse cases, and nowhere is it more apparent than in what seems to be the growing number of teacher sex cases. We all react with shock at the very idea of a male teacher "taking advantage" of young women in his class; I can't imagine a panel having trouble with criminal charges in such a case, no matter how good looking the man, indeed, especially if he were good looking.
But give me a good-looking woman teacher, and the locker room jokes begin. "Wish I'd had a teacher like that in school," men say. "And you're complaining?" they ask.
The locker room humor is dangerous on at least three counts.
First, it demeans male sexuality as unworthy of protection, without regard to age. If a boy should consider himself lucky to be the object of a teacher's attentions, then what does that say about the boy who complains?
The widespread view that it is only women or girls who have legitimate claim on the state to protect their sexuality is what has left both male-on-male and female-on-male claims of sex abuse in a sort of never-neverland, where there are barely no statistics, few recorded cases, and yet we all know that there are far more instances of abuse than officials recount.
Second, it ignores the power relationship between the woman and her student, which makes this different from the usual male-female relationship, and puts the boy on a different footing. The truth is that we are used to thinking of men as not needing protection in a male-female relationship, assuming that they're 18 or older. But power trumps age, and teachers have power. Locker room humor that obscures that reality leaves boys, by virtue of the accident of their birth date, in a precarious position.
Third, it provides the basis for ignoring the judgments of the legislature on criminal law.
The criminal law is the will of the majority. There is no constitutional right of teachers to have sex with their students or students to have sex with their teachers. Even if there is a constitutional right to adultery or homosexuality, there is no constitutional right to have sex with your superiors while you're studying under them. And short of such a right, it is up to the legislature to set society's standards for acceptable conduct.
Here, the legislature spoke, and enacted a law. The fact that my fellow panelists don't happen to "like" it is no reason for it not to be enforced. There are any number of criminal laws that I don't like. But that's a reason to argue to the legislature to change them, not to tell a prosecutor he's wrong about enforcing them.
Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.
Estrich's books include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the Fox News Channel.