Pennsylvania Courts Uphold Institutional Sexual Assault Statute as Applied to Teachers’ Aide and 18 Year Old Student

A teacher’s aide who worked at a high school and admitted to engaging in sexual activities with an 18-year old male student was unsuccessful in her appeal of the trial court’s judgment of sentence. Appellant asserted that section 3124.2(a.2)(1) of the Commonwealth’s institutional sexual assault statute was both unconstitutionally vague and unconstitutionally overbroad. The court rejected both assertions.

Appellant was convicted of institutional sexual assault after admitting to kissing and engaging in sex on a number of occasions with an 18-year old male student who attended the high school where she worked. She was sentenced to five years’ probation. She then filed a motion to quash, triggering the trial court to issue a PA.R.A.P. 1925(a) opinion in which it concluded that Section 3124.2(a.2)(1) passed constitutional muster. The Superior Court agreed and affirmed the judgment of sentence. The Pennsylvania Supreme Court denied her subsequent petition to appeal.

The institutional sexual assault statute’s pertinent language is:

[A] person who is a volunteer or an employee of a school or any other person who has direct contact with a student at a school commits a felony of the third degree when he engages in sexual intercourse, deviate sexual intercourse or indecent contact with a student of the school. (emphasis added).

Section 3124.2(a.2) also identifies a “teacher aide” as an “employee.”

First, appellant argued that use of “he” made the statute vague because it is unclear whether the statute applies to women. In a non-precedential decision, the Superior Court of Pennsylvania rejected the argument, citing Section 1902 of the Statutory Construction Act, which states that masculine gender words include the feminine. The court also pointed out that the legislature intended to prohibit sexual contact between school employees and students. Appellant was a teacher’s aide, and the student attended the school where she worked.

Second, appellant argued that Section 3124.2(a.2)(1) is overbroad and violates the 14^th Amendment’s Due Process Clause because it “punishes…protected conduct” by barring two consenting adults from engaging in sexual contact.  For guidance, the court looked to Commonwealth v. Mayfield, 832 A.2d 418 (Pa. 2003), which cited a then-recent U.S. Supreme Court decision, Lawrence v. Texas, 539 U.S. 558 (2003), addressing sexual contact between correctional staff and inmates. As in the Mayfield case, the overriding principle is the power exercised by school employees over students, not the consent by two persons of adult age. Sexual contact between school employees could give rise to coercion and exploitation. Consent and being of legal age, therefore, are irrelevant considerations.

The court found that Section 3124.2(a.2)(1) was not unconstitutionally vague or unconstitutionally overbroad.

Indeed, we can draw several conclusions from this case: 

• The word “he” in Pennsylvania statutes means “she,” too. 

• In the case of a school employee having sex with a student, mutual consent and the student’s age of 18 are irrelevant to a charge and conviction of institutional sexual assault. The possibility of a coercive relationship stemming from the power exercised by school employees over students is the relevant principle. 

Finally, it appears that this case was not the best factual scenario upon which to challenge the constitutionality of the statute.  One could envision a set of facts where the school employee (a 22 year old bus driver for example) meets an 18 year old senior outside of school and engages in consensual sexual relations. Neither knows that the bus driver serves the school where the 18 year old is enrolled.  In that situation, the concepts of coercion and exploitation, based upon a disparity of power, do not exist.  In the meantime, we continue to fight for justice, one case at a time.  

For more than twenty-five years, the Law Offices of Marc Neff has been defending the rights of individuals and corporations facing serious criminal charges. Throughout Pennsylvania, New Jersey, and elsewhere, Mr. Neff has successfully defended clients charged with white collar crimes such as mail fraud and bank fraud, RICO, drug distribution, money laundering, sex crimes and other serious offenses.