Consenting Adults – Arkansas Court Allowing Student/Teacher Relationships

By , April 11, 2012 4:07 pm

Originally posted at In Our Words, reposted with permission.

As a teacher who works with children in middle and high school, I understand the relationships and intimacy which can develop between teachers and students. I’ve worked with some of my students for over a decade, seen them grow into confident young adults, and watched them go off to college. Some stay in touch, and some cross my mind from time to time as I wonder what they’re up to today. I hope I do a good job steering them in through tumultuous childhoods and teenage years, and aim to leave them better people than they were when the first came to work with me. I’m also a theatre instructor who generally sees my students once a week, so I have limited impact, but I can still dream of making a difference; I know how powerfully my teaches — even those I saw infrequently — affected my development into an adult.

All these thoughts crossed my mind as I heard that the Arkansas Supreme Court had struck down a law 4-3 which forbade teachers from engaging in sexual activity with students who were under the age of 21. I feel pretty strongly that behavior outside of one’s employment shouldn’t be a factor in how they’re viewed as an employee. I hate the stories of teachers who are fired for having drunk pictures show up on Facebook, and I think drug screening for applicants is inherently unjust and offensive. For me, as a transgender lesbian, it’s all too easy to imagine my “personal life” being viewed as offensive or unacceptable when it comes to my professional life. Indeed, I was fired from a teaching position for being trans, which has nothing to do with my ability to teach a class.

So, my gut reaction is that, yes, if the relationship (in this case between an 18 year old student and her 36 year old teacher) is legal outside of school, it should be legal in school.

Upon further reflection, however, teacher-student relationships create an inherent power dynamic. Sexual activity between minors and adults is forbidden (at least in part) because there’s an inherent imbalance of power. It is impossible for a child to maturely provide consent to an adult in the way two adults (or, arguably, two children) are able to do.

But these lines are arbitrary. No one thinks that a flip is switched at exactly 16 that makes people able to drive, or at exactly 18 that makes people able to vote or smoke, or at exactly 21 that makes people able to drink. Societies create arbitrary lines in the hope that – for the majority of the population – those lines will do a pretty good job of keeping the “too young” on one side and the “old enough” on the other. Yet teacher/student is a more clearcut relationship. You stop being a student when you graduate, not when you reach a specific age. So should a teacher/student sexual relationship — illegal and generally agreed to be a bad thing at 17 years, 11 months, and 30 days — suddenly be acceptable at 18?

From the three dissenting justices: ”For the majority to say that such authority vanishes when a student turns 18 ignores the realities of the student-teacher relationship,” Brown wrote. “I cannot agree that a teacher has a right protected by our constitution to engage in sexual contact with a student.”

Many students turn 18 while in their senior year of high school (myself included) they’re judged “too young” in one way — they’re still in high school school, a place for children — but “old enough” for lots of things as far as legality is concerned. I remember realizing, after I turned 18, that I no longer needed to take permission slips home for my parents to sign. When we went scuba diving in the school pool (which was awesome, by the way) I took the form, signed it myself and handed it right back. I was legally allowed to make that decision, even though I was still a student as far as the school was concerned; I had to obey the period bells, get to class on time, and so on.

And yet I keep returning to the fact that we judge people — rightly or wrongly — to be adults at 18. There isn’t a case-by-case test or a subjective panel or a medical diagnosis. On one’s 18th birthday, they’re an adult. Which, to me, means they should be allowed to sleep with their teacher. Even if it makes me uncomfortable. Even if I question the inherent power dynamic of such a relationship. Even if the school gets really worried about potential liability. They’re adults. Treat them like it.

4 Responses to “Consenting Adults – Arkansas Court Allowing Student/Teacher Relationships”

  1. JenH says:

    The problem is not so much “should the student be allowed to sleep with the teacher?” as it is “should the teacher be allowed to sleep with the student?”. Once the student has reached adulthood, they are then given rights that they did not have before. The teacher, however, is still in the exact same position as they were before: bound by the parameters of a student-teacher relationship. Sex is not a “right” that one gains at adulthood; rather, the adult-child dynamic is simply one of many power dynamics we must be cautious with when it comes to sex.

    Even if we leave aside consent concerns, there is still the problem of conflict-of-interest: how can we trust a teacher to accurately gauge a student’s performance if they are romantically involved with that student?

    • Rebecca says:

      I think that’s a really important perspective. I wonder what policies exist for teachers to grade siblings or children or other family members. Obviously, that’s not the same thing as a romantic/sexual relationship, but it is a situation where a teacher’s objectivity could reasonably be called into question.

  2. Kyra says:

    I think the issue in situations like this is not “can the student consent?” but “can the teacher tell consent from compliance?” and “can the teacher responsibly trust hir ability to accurately identify consent?”

    Everyone who accepts someone else’s consent to sex is gambling that they judged that consent accurately, with the other person’s well-being as the stakes. The odds of their being right vary with every situation, with every collection of verbal and nonverbal signals from the other person, with every set of social/observational skills (and willingness to use them) of the person doing the analyzing. And presumably there’s a point at which the law can step in and say, “In this situation you’re taking too high of a risk of being wrong, and doing the other person a disservice by taking their lack of refusal at face value.”

    There are people who can and do and would freely consent to sex with a person in authority over them if that person’s behavior toward them is non-offputting. There are people who can and do freely consent to behavior other people would find distressing or traumatic, including illusions of abuse of power. I don’t think what people can or cannot consent to is the issue here, simply because it’s so subjective and because it’s so inherently their individual right to give consent or withhold it as they choose.

    I think the issue here is the higher-authority person’s responsibility to tread very, very carefully to avoid misusing that power. Authority over someone and the threat of its misuse tend to strongly muddle communication in both directions. An invitation can be read as a demand, coming from higher in the chain of command; compliance with that can easily be misread as consent, even enthusiastic consent. The appearance of consent can be demanded, or hesitance/dislike/distress/lack of enthusiasm can be deliberately misread. There is often no way to be certain that there’s not a command or a threat hidden in a request, and no way to be certain that even the most enthusiastic expressions of content aren’t just a performance by a subordinate who feels the need to tell the other person what zie wants to hear.

    Perhaps there are ways to establish that consent is real, at least beyond the same reasonable doubt that is prevalent in any sexual interaction (although, to be fair, the law is not exactly good at this); it would be good for the legal code to specify how this can be accomplished. Certainly, the standards for it should be well-publicized and written to avoid any leeway on the teacher’s end for intentional misunderstandings. A model of enthusiastic, explicit, and affirmative consent standards and a “if you’re not sure, then don’t” warning would be absolute musts. (I’d love to see EE&A consent standards be adopted across the board of legal sexual activity, personally, but I doubt that’ll happen anytime soon; here, though, they’re all the more important.)

    But I think it important that as much discussion of this issue as possible be focused on questioning the higher authority’s ability to identify consent, rather on the lesser one’s ability to give it. To do otherwise, to competent adults, is inherently a dismissal of agency (and an agency that is already not always accepted).

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