But Georgia's Supreme Court Monday said while it isn't OK, it also isn't necessarily illegal. And lawmakers had better put the issue on their front burners to close this loophole.
The case began in 2006 with the arrest of Melissa Chase, a former Harlem High School teacher and coach who had a single sexual encounter with a 16-year-old student and was sentenced in 2007 to 10 years in prison.
Georgia's age of sexual consent is 16, and the student admitted initiating a relationship with Chase. But Augusta Superior Court Judge Carl Brown refused to allow Chase's attorney's to use the student's consent as a defense, and the Georgia Court of Appeals agreed.
However, in a ringing 5-2 ruling Monday, the state Supreme Court said Chase should have been allowed to use consent as a defense. Writing for the majority, Chief Justice Leah Ward Sears went even further: "... Under our reading of the statute ... Chase's conduct with (the student) was not a crime because (the student) was over the age of consent when the sexual contact occurred."
In essence, the ruling agrees with Chase's defense attorneys and the Georgia Association of Criminal Defense Lawyers, who point out that state law fails to rule out consent as a defense in cases involving students and teachers, while explicitly doing so for, among others, jailers and inmates or psychotherapists and patients.
Assistant District Attorney Charles Sheppard tried to wish away the loophole, arguing that the justices should "broadly" interpret the law to prevent teachers from claiming they had consent of students in a relationship.
The Supreme Court swatted away such a call to activism. Sears wrote, "The District Attorney's passion for protecting school-age children is admirable. However, to accept these arguments would be to legislate by judicial fiat," and would represent interference with the role of the legislature.
That legislature must now focus its effort on amending the law. The law should recognize the difference between 16-year-old high-schoolers engaging in inappropriate contact with teachers, and adult-age college students engaging in relationships with professors. The former must be illegal; the latter should merely be a violation of school conduct policies.
No one, least of all the Georgia Supreme Court, contends that sex between a high-schooler and a teacher is a good idea. But until lawmakers fix the law, it isn't necessarily illegal.