Appellate court rules teachers can have sex with 18-year-old students

State law does not bar teachers from having consensual sex with 18-year-old students, an appeals court ruled today in dismissing a case against a former Hoquiam High School choir teacher.

The teacher, Matthew Hirschfelder, was charged with first-degree sexual misconduct with a minor for allegedly having sex with a graduating senior in 2006. He challenged a judge's refusal to dismiss his case, noting that because the student was 18, she wasn't a minor.

A three-judge panel of the Washington Court of Appeals unanimously agreed. While the law was written vaguely, a review of the legislative history clearly shows that lawmakers intended to criminalize contact between teachers and 16- or 17-year-old students, the court said.

The state's code of professional conduct for teachers still prohibits any sexual advance toward or contact with pupils, whatever their age, and they can be fired for it. Sexual contact with students younger than 16 is considered child rape or molestation.

"There's nothing equivocal about teacher ethics: You don't have sex with a student, period," said Hirschfelder's attorney, Rob Hill of Olympia.

Hirschfelder, who was 33 at the time, denies any sexual relationship occurred.

Before 2001, state law barred anyone at least five years older than a 16- or 17-year-old from abusing a supervisory relationship to coerce the teen into having sexual relations. That law applied to teachers as well as anyone else — such as a teen's boss or coach.

However, the law required prosecutors to prove that coercive tactics were used, such as the promise of a better grade — making it difficult to go after teachers who had relations with a student they didn't directly supervise.

In 2001, lawmakers decided they wanted to close that loophole. They passed a bill outlawing all sexual contact between teachers and students "at least 16 years old." The new language didn't clarify what happened if the student was over 18.

The Grays Harbor Prosecutor's Office argued that the law should be interpreted as covering all students older than 16. People are allowed to attend public high schools in Washington until they are 21.

In an opinion authored by Judge Marywave Van Deren, the appeals court rejected that argument, saying the law was intended to criminalize only contact with 16- and 17-year-old students, and that the age of majority in Washington is 18.

"The name of the statute is 'sexual misconduct with a minor,' " Hill noted.

Grays Harbor County Prosecutor Stew Menefee did not immediately return a call from The Associated Press, but he told The Daily World newspaper of Aberdeen that he would consider appealing.

Several teachers have been prosecuted under the law for having sex with 18-year-old students, said Seattle lawyer David Hansen, who filed a friend-of-the-court brief on behalf of the Washington Association of Criminal Defense Lawyers.

In 2007, former Hoquiam wrestling and football coach Todd Hoiness was sentenced to five months in jail after he pleaded guilty to sexual misconduct with a minor. That case too involved an 18-year-old student.

Hirschfelder has not been able to work as a teacher since late 2006, when he was placed on administrative leave pending an investigation by the school board. He was arrested and charged in spring 2007, after the former choir student told police she had a monthlong affair with him that began shortly before she graduated.

Hill said Hirschfelder has been tuning pianos to make ends meet.