Louisiana Criminal Defense Topics: Considering the Unconstitutionality of La. R.S. 14:81.4, Prohibited Sexual Conduct between an Educator and a Student, and its Criminalization of Sexual Conduct between Consenting Adults.

La. R.S. 14:81.4, Prohibited Sexual Conduct between an Educator and a Student, is arguably unconstitutional. Notably, this statute only criminalizes sexual conduct between an educator and a student of the age of consent. To the extent that La. R.S. 14:81.4 criminalizes the performance of private, consensual, non-commercial acts of sexual intimacy between individuals otherwise legally capable of consent, La. R.S. 14:81.4 is arguably unconstitutional. 


Allow me to illustrate some of the ramifications of this law. Suppose Jane Doe is a student at School A, and Teacher Jack is a teacher at that same school. Teacher Jack is not a teacher of Jane and does not have any classes with Jane because she is only taught by other teachers at the same school. Jane is 20-years-old. Teacher Jack is also an adult who is 25-years-old and just graduated from college with a Bachelor’s degree and is teaching his first semester. Teacher Jack and Jane Doe somehow meet, develop a relationship, and eventually have sexual intercourse. Teacher Jack is never alleged to have used his position of trust or authority as a teacher to somehow coerce or exploit Jane into having intercourse with him. They are not even in the same classroom, and he does not teach her in any capacity at the school. Basically, the two individuals willingly and voluntarily engage in sex as consenting adults and have no other connection to each other aside from being at the same school. Eventually, someone finds out about the relationship and reports Teacher Jack for violating La. R.S. 14:81.4. Under the letter of the law, Jack has indeed violated La. R.S. 14:81.4. Jack is, therefore, arrested. He is distraught because he didn’t realize he was violating the law by engaging in a relationship with Jane, a 20-year-old of the age of consent who he does not even teach.    

​To see why the law is violated in this context, one needs to only read the law. Keep in mind when reading the law that in Louisiana the age of seventeen is the “age of consent” for a person to legally be able to consent to sexual intercourse. La. R.S. 14:81.4, Prohibited Sexual Conduct between Educator and Student, reads as follows:
​
“§81.4.  Prohibited sexual conduct between educator and student
A.  Prohibited sexual conduct between an educator and a student is committed when any of the following occur:
(1)  An educator has sexual intercourse with a person who is seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, when the victim is not the spouse of the offender and is a student at the school where the educator is assigned, employed, or working at the time of the offense.
(2)  An educator commits any lewd or lascivious act upon a student or in the presence of a student who is seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, with the intention of gratifying the sexual desires of either person, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense.
(3)  An educator intentionally engages in the touching of the anus or genitals of a student seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, using any instrumentality or any part of the body of the educator, or the touching of the anus or genitals of the educator by a person seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense using any instrumentality or any part of the body of the student.
B.  As used in this Section:
(1)  ‘Educator’ means any administrator, coach, instructor, paraprofessional, student aide, teacher, or teacher aide at any public or private school, assigned, employed, or working at the school or school system where the victim is enrolled as a student on a full-time, part-time, or temporary basis.
(2)  ‘School’ means a public or nonpublic elementary or secondary school or learning institution which shall not include universities and colleges.
(3)  ‘Sexual intercourse’ means anal, oral, or vaginal sexual intercourse.  Emission is not necessary, and penetration, however slight, is sufficient to complete the crime.
(4)  ‘Student’ includes students enrolled in a school who are seventeen years of age or older, but less than twenty-one years of age.
C.  The consent of a student, whether or not that student is seventeen years of age or older, shall not be a defense to any violation of this Section.
D.  Lack of knowledge of the student's age shall not be a defense.
E.(1)  Whoever violates the provisions of this Section shall be fined not more than one thousand dollars, or imprisoned for not more than six months, or both.
(2)  For a second or subsequent offense, an offender may be fined not more than five thousand dollars and shall be imprisoned, with or without hard labor, for not less than one year nor more than five years.
F.  Notwithstanding any claim of privileged communication, any educator having cause to believe that prohibited sexual conduct between an educator and student shall immediately report such conduct to a local or state law enforcement agency.
G.  No cause of action shall exist against any person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings arising out of such report, and such persons shall have immunity from civil or criminal liability that otherwise might be incurred or imposed.  This immunity shall not be extended to any person who makes a report known to be false or with reckless disregard for the truth of the report.
H.  In any action to establish damages against a defendant who has made a false report of prohibited sexual conduct between an educator and student, the plaintiff shall bear the burden of proving that the defendant who filed the false report knew the report was false or that the report was filed with reckless disregard for the truth of the report.  A plaintiff who fails to meet the burden of proof set forth in this Subsection shall pay all court costs and attorney fees of the defendant.
Acts 2007, No. 363, §1; Acts 2009, No. 210, §1, eff. Sept. 1, 2009.”
 
Under the facts of Jack’s case, La. R.S. 14:81.4 is arguably unconstitutional on its face and unconstitutional as applied in that it (i) violates the vital interest in liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution, (ii) violates the Fourteenth Amendment guarantee of equal protection of the laws embodied in the United States Constitution, and (iii) constitutes an infringement of the right to privacy embedded in the United States Constitution. While a detailed analysis of the unconstitutionality of  La. R.S. 14:81.4 is beyond the scope of this blog due to the sheer length required to adequately explore this topic, if you or someone you know is charged with La. R.S. 14:81.4, don’t let your constitutional rights potentially be violated. Contact a competent, knowledgeable attorney for help.