Emily Nesbit, a 31 year old former English teacher in Cumberland County, found out the hard way that it is now illegal in Pennsylvania for a teacher to have consensual sex with a student, even if the student is over 18. In 2012, Pennsylvania modified the Institutional Sexual Assault statute to include situations where a teacher, coach, school employee or school volunteer has consensual sex with any student, including those over the age of 18. Previously, a school district employee who had consensual sex with an 18 or 19 year old student could not be charged with any crime, which apparently irked enough moral scolds to lead to a change in the law.
Institutional sexual assault with a consenting adult “victim,” is a third degree felony punishable by up to seven years in prison. The sentencing guidelines, however, would allow for probation, if the defendant has no prior record, which would include almost anyone facing this charge, as a person with a prior record never would have been working for a school in the first place. But even if a defendant receives probation, he or she will not only have a felony record, but also have to register as a sex offender for 25 years pursuant to SORNA, The Sexual Offender Registration and Notification Act.
I do not agree with the new expansion to the Institutional Sexual Assault Sexual statute. Teachers or coaches who have sex with consenting adult students never went unpunished, even if they could not be criminally prosecuted. They were always fired, and often publicly humiliated once the news spread. Also, I don’t think that the young male in this case is truly a victim, in any traditional sense of the word. He is an adult who is old enough to vote, serve in the military, drive a car, enter contracts, appear in a porn film and legally consent to sex. Ironically, he will probably be far more psychologically traumatized by the fact that his older girlfriend is having her life ruined because of something he did. He consented to sex with her, and now she has lost her job, will likely lose her teaching certificate, and is facing a felony charge and the possibility of being required to register as a sex offender. This young man may rightly or wrongly blame himself for being a willing participant; he was not a prepubescent child who was manipulated into doing something he did not understand.
There are a lot of reasons why teachers should not have sex with adult students, and that is why a teacher who has sex with a student should be fired. But there is no reason to bring criminal charges. It is unnecessary pile on. Loss of one’s job and teaching certificate and damage to one’s reputation are punishment enough. Also, it is absurd to place a woman who had consensual sex with another adult in the same category as pedophiles who either molested children or possessed child porn. Fortunately, Ms. Nesbit has one of the most highly respected criminal defense attorneys in South Central Pennsylvania. I hope he can work with the District Attorney to achieve a fair and just result in this case.
Matt McClenahen is a criminal defense lawyer in State College, Pennsylvania, home of Penn State University.
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