So the Arkansas Supreme Court held yesterday — applying the Arkansas Constitution — in Paschal v. State (Ark. Mar. 29, 2012), relying on the right to sexual autonomy that it had recognized in Jegley v. Picado (Ark. 2002). As the court noted, cases from other states applying the federal constitution and other state constitutions have come out the other way. But Arkansas courts are the final interpreters of the state constitution (though of course the people can change it, if they wish), and therefore the U.S. Supreme Court will not be reviewing this case. Here’s the key passage:
“[T]he fundamental right to privacy implicit in our law protects all private, consensual, noncommerical acts of sexual intimacy between adults.” Picado, 349 Ark. at 632, 80 S.W.3d at 350. Section 5-14-125(a)(6) criminalizes consensual sexual contact between adults. While it is possible that the General Assembly intended to criminalize a teacher’s use of his or her position of trust or authority over an adult student to procure sex, section 5-14-125(a)(6) contains no language evincing such intent. While we might be inclined to assume the General Assembly so intended, we are constrained from making such assumptions. This court strictly construes criminal statutes, resolving any doubts in favor of the accused. This court cannot, and should not, by construction or intendment, create offenses under statutes that are not in express terms created by the legislature. Nothing is taken as intended which is not clearly expressed, and this court is without authority to declare an act to come within the criminal laws of the state merely by implication.
As applied in this case, section 5-14-125(a)(6) criminalizes consensual sexual conduct between adults and, therefore, we conclude that the statute infringes on Paschal’s fundamental right to privacy. A statute that infringes on a fundamental right is subject to strict-scrutiny review, and the statute cannot survive unless “a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest.” Picado.
The State does not claim a compelling state interest in its brief to this court. Rather, it contends that the Arkansas Constitution clearly contemplates the preservation of a special learning environment for high school students through the age of twenty-one and that the State has a legitimate interest in protecting that environment…. As we understand the argument, the State asserts that it has an interest in protecting adult students from the sexual advances of teachers who have power, authority, or control over them.
Assuming that the State has asserted a compelling state interest and assuming that section 5-14-125(a)(6) advances that interest, we must determine whether the statute is the least restrictive method available to carry out the State’s interest. We recognized in Picado that “the State has a clear and proper role to protect the public from offensive displays of sexual behavior, to protect people from forcible sexual conduct, and to protect minors from sexual abuse by adults,” and that “criminal statutes, including those proscribing indecent exposure, rape, statutory rape, and the like, are in existence to protect the public from precisely such harms.” Likewise, we recognize that the State has an interest in protecting adult students from the sexual advances of teachers.
But section 5-14-125(a)(6), which criminalizes adult consensual sex, is not the least restrictive method available to carry out the State’s interest. Moreover, the State’s interest is already advanced in section 5-14-126(a)(1)(C) (Supp. 2011), which prohibits a mandated reporter in a position of trust or authority over a victim from using the position of trust or authority to engage in sexual intercourse or deviate activity. [Footnote: Oddly, the dissents repeatedly refer to Paschal’s misuse of his position of trust or 10 authority when that is not at issue in this case. Section 5-14-125(a)(6) is a strict-liability statute. The State was required to prove only that, while Paschal was a teacher, he had sexual contact with a student who was less than twenty-one years of age….] Section 5-14-125(a)(6), as applied in this case, infringes on a fundamental right and is not the least restrictive method available for the promotion of a state interest; therefore, it is unconstitutional. Because we conclude that the statute is unconstitutional on this basis, we need not address the remaining constitutional challenges to the statute.
[Footnote: We find it perplexing that one of the dissenting justices chooses to ignore this court’ binding precedent and instead turns to cases from other jurisdictions to determine whether an Arkansas statute, section 5-14-125(a)(6), as applied in this case, violates the fundamental right to privacy found in the Arkansas Constitution. See Flaskamp v. Dearborn Pub. Sch., 385 F.3d 935 (6th Cir. 2004) (holding that a school board’s denial of tenure to a teacher who had allegedly engaged in a sexual relationship with a high school student within nine months of the student’s graduation did not violate the teacher’s federal constitutional rights); State v. McKenzie-Adams, 915 A.2d 822 (Conn. 2007) (holding that a statute criminalizing sexual intercourse between a teacher and a student was not unconstitutional under the United States Constitution and the Connecticut Constitution), overruled on other grounds by State v. Payne, 34 A.3d 370 (Conn. 2012); State v. Hirschfelder, 242 P.3d 876 (Wash. 2010) (holding that a statute criminalizing sexual conduct between teachers and students was not void for vagueness and did not violate the teacher’s right to equal protection under the United States Constitution).]
Thanks to Opher Banarie for the pointer.