So last night the Iowa House unanimously passed House File 2474: An Act expanding the criminal offense of and related penalties for sexual exploitation to include persons issued a school coaching authorization. This is a leadership bill intended to address a specific problem raised in an April 11th Iowa Supreme Court ruling – State of Iowa v Patrick Ryan Nicoletto – in which the Court held that a 30 year old assistant high school girls’ basketball coach who had engaged in an ongoing consensual sexual relationship with one of his 16-year-old players could not be convicted of the crime of “Sexual Exploitation by a School Employee” because he did not, in fact, meet the statutory definition of “school employee” – since unlike many school coaches whose are also licensed teachers, Mr. Nicoletto was… just a coach, and coaches aren’t issued licenses, they’re issued coaching authorizations. The Court’s ruling resulted in Mr. Nicoletto’s conviction for Sexual Exploitation being overturned – he’s no longer a sex offender, or a felon, which many members of the general public find troubling. And since the Court’s ruling included several variations on the theme of “hey, we don’t write the laws, we just interpret them,” there appears to be a general consensus that we (i.e., the legislature) need to fix this “loophole” right away, before we adjourn next week.
Which is where House File 2474 comes in, and we’ll get to that, but first, some background. Actually, first I must point out that the Court’s ruling in Nicoletto did not serve to declare open season on Iowa’s children (which is certainly the way some people have been spinning it). It’s really only relevant to high school students over the age of 16, because had the player with whom Nicoletto engaged in consensual sex been under the age of 16, Nicoletto could have – and no doubt would have – been charged with and convicted of Sex Abuse 3rd degree, a Class C felony sex offense carrying a lifetime parole and sex offender registry requirement, pursuant to Iowa Code section 709.4(1)(b)(3)(d) (the “statutory rape” provision) . So the Court’s ruling does NOT give school coaches carte blanche to engage in sexual acts with the majority of Iowa’s school children – that’s already a crime, and it’s a more serious crime than Sexual Exploitation by a School Employee, and thus Iowa’s children under the age of 16 are currently protected from sexually predatory coaches (at least to the extent that criminalizing sexually predatory behavior actually deters sexual predators from engaging in that behavior, about which I have my doubts).
Now, back to the background of 709.15 (titled “Sexual Exploitation by a Counselor, Therapist or School Employee,” but we’re only interest in the “School Employee” portion of the statute). As defined by the statute itself, a “school employee” is a “practitioner,” and a “practitioner” is defined by Iowa Code 272.1 as an “administrator/teacher/other licensed professional … who provides educational assistance to students.” So for all practical purposes, currently the crime of Sexual Exploitation of a School Employee can only be committed by a licensed teacher or school administrator (pretty much) … and since most defendants charged with the crime of Sexual Exploitation by a School Employee are teachers, for purposes of this discussion I’m just going to reference teachers.
What behavior on the part of teachers does 709.15 actually criminalize? Well, if a teacher engages in any “sexual conduct” w/a student (note that a student is defined as a student in elementary/secondary school, including an eighteen or nineteen year old high school senior and/or a person who has graduated from high school w/in the past 90 days), the teacher commits a Class D felony sex offense, w/a sentence of up to 5 years in prison, a ten year “special sentence” of parole after that, and (if the student is under 16) lifetime sex offender registry (if the student is 16 or older, it’s only ten years on the sex offender registry).
“Sexual Conduct” includes but is not limited to kissing (yes, kissing!), or touching of the clothed or unclothed inner thigh/ bust/groin/buttocks, or an actual sex act, if these actions are done for the purpose of arousing or satisfying the sexual desires of the teacher or student. It doesn’t matter if the sexual conduct is with a student from some other school district who hasn’t been, isn’t currently, and never will be the teacher’s student – e.g., a 2nd grade teacher cannot legally date an 18-year-old senior from a high school in another county (assuming the date includes kissing).
I certainly understand the rationale behind making it a felony sex offense for a high school teacher to engage in sexual conduct w/a student attending the high school at which the teacher works – even if the teacher has never personally taught the student, and even if the student is over 16 and thus could legally “consent” to sexual conduct w/non-teacher adults. A teacher’s position of authority over students in general makes any sexual conduct between a teacher and a student attending the school at which the teacher is employed inherently coercive … i.e., it’s not a level playing field. And besides, teachers and students should be focused on teaching and learning, and not on hooking up w/each other.
Having said that, I’m not so clear on the rationale behind making it a sex offense for, say, an elementary teacher to engage in sexual conduct w/her 18-year-old boyfriend from the next county over just because that boyfriend happens to still be a high school student. Maybe better safe than sorry? Or concerns about the appearance of impropriety? Whatever the rationale (or lack thereof) I can live with the blanket prohibition, since I’m pretty sure that all licensed teachers are at least 21, and that they’ve gone to school for a long time to learn how to be teachers, and that during that extended period of education/training one of the things that is drilled into their heads is that they should never, ever engage in any type of sexual conduct w/any student, no matter the student’s age or location, and that if they disobey this rule they will be guilty of a felony sex offense. I.e., I am confident that licensed teachers are provided with clear and repeated notice of the fact that (a) the law exists and (b) the law applies to them and (c) if they violate the law, they commit a felony sex offense … and thus by choosing to become teachers they effectively give “informed consent” to being subject to the provisions of 709.15.
So that’s the background of the crime of Sexual Exploitation by a School Employee, which the Court held did not apply to Mr. Nicoletto . And because Mr. Nicoletto was let off the hook because he didn’t meet 709.15’s definition of school employee, I’m pretty sure that the primary intent of House File 2474 was to amend 709.15’s statutory definition of “school employee” in such a way as to ensure that in the future, if a high school coach chooses to engage in sexual conduct with a member of his team (again, the focus is on high school students and specifically high school students over the age of 16 because it’s already a more serious sex offense for a coach – or any adult – to engage in sexual relations with students under the age of 16) that coach can be prosecuted for a felony sex offense. Which makes sense – a high school coach is by definition an authority figure to the members of his team, and the balance of power between a coach and a player is at least as uneven as the balance of power between a teacher and a student, and thus any sexual relationship between the two is inherently coercive. Plus, coaches and players should be focusing on coaching and playing, and not on hooking up with one another. So yes, I agree we need to fix the Nicoletto loophole.
Unfortunately, the “fix” we passed out of the House last night (and which was passed out of the Senate today, and which will become law immediately upon being signed by the Governor within the next few days) is not, in my opinion, the best fix; like many criminal justice bills we pass, it’s a little too broadly drafted, and thus once enacted will criminalize Nicoletto-type behavior (which is good) but will also criminalize behavior that simply is not and should not be a crime (which is bad).
The problem, as it often is, is in the drafting. HF 2474 amends Iowa Code section 709.15(1)(f)(2014) – the statutory definition of “school employee” – as follows:f. “School employee” means a practitioner as defined in section 272.1 or a person issued a coaching authorization under section 272.31, subsection 1. Since all school coaches who aren’t licensed teachers must have a coaching authorization, under the bill, a high school coach will be considered a “school employee,” and if s/he engaged in sexual conduct with one of his/her players, s/he could be prosecuted for/convicted of the crime of Sexual Exploitation of a Minor. That’s the good part.
Here’s the bad part: Under the bill, it’s not just high school coaches like Mr. Nicoletto who are now considered school employees. As soon as the Governor signs HF 2474 into law, it’s anyone who has (ever?) obtained a coaching authorization pursuant to Iowa Code 272.31 who will immediately be considered a “school employee” for purposes of prosecution under 709.15. Regardless of when the person was issued the coaching authorization, and regardless of whether or not the person has ever actually been employed by a school in any type of capacity, coaching or otherwise.
And because it’s not particularly difficult or time-consuming to obtain a coaching authorization -a person must complete four semester hours of specific classes, which can be done online or through a local community college ( http://www.kirkwood.edu/coaching) – there are a whole lot of Iowans with valid coaching authorizations – including 170 teenagers, all of whom will be subject to prosecution as “school employees” as soon as the Governor signs HF 2474 into law.
Which creates a serious problem for these kids, since I assume that at least some, if not most, of these 170 teenagers with coaching authorizations have a boyfriend or girlfriend who is still in high school – in fact, I assume some of these kids are themselves still high school students. And once House File 2474 becomes law, if one of these kids so much as kisses his/her high school student girlfriend/boyfriend, s/he is guilty of the crime of Sexual Exploitation by a School Employee. Period. No question about it. Even if the only coaching s/he does is on a part-time basis at the elementary school in the next county. Even if s/he’s no longer doing any coaching at all, or has never done any coaching. If s/he’s been issued a coaching authorization, any sexual conduct (including kissing) with any high school student (even an 18 or 19-year-old high school senior) is a felony sex offense.
So overnight, enactment of this bill is going to criminalize normal teenage consensual sexual conduct (e.g., kissing) between two teenagers over the age of 16 who have never had, and never will have, any type of coach/student relationship, based solely on the fact that one of the teenagers has been issued a coaching authorization. This is clearly a ridiculous result, and it’s one that could have been avoided with a few minor tweaks to the language in HF 2474. But this was a leadership bill, on a (kind of bizarrely) fast track, and only about eight hours elapsed between the time the bill was filed and the time it was passed out of the House, so there really wasn’t much opportunity to negotiate tweaks to the bill.
I did, however, have a brief opportunity to discuss my concerns re. the over broad scope of the bill prior to final passage with a few proponents of the bill. Their response was basically that I was being silly, that yes, while many of the teenagers who have been issued coaching authorizations no doubt have significant others who are still in high school, and thus are presumably engaging in sexual conduct with a high school student on a regular basis, there’s no way that any of those kids will be prosecuted for the crime of Sexual Exploitation by a School Employee, even if they openly and repeatedly commit the crime by kissing their high school significant other in public – because of course prosecutors will choose to exercise their prosecutorial discretion and leave these kids alone. So no worries, it’s all good, no need for concern. Right?
Wrong – because assuming that all prosecutors will look the other way and ignore all violations of a specific law by a specific group of people just because it’s obviously a stupid law as applied to the specific group of people is an extremely irresponsible way to handle this problem, and I was pretty appalled that the people with whom I discussed my concerns (non-legislators, btw) even suggested it as a viable option. Prosecutorial discretion is a good thing, and an important tool, and I sure wish prosecutors would exercise it more often, but the key here is that it’s completely discretionary – and the idea that every county attorney in the state will be willing to ignore the fact that a legal adult (albeit a teen age legal adult) is committing a felony sex offense (albeit a harmless one) with a high school student on an ongoing basis is just crazy. And of course, prosecuting a teenager as a sex offender for making out with his teenage girlfriend is also crazy, but just as the IA Supreme Court Justices like to point out (a lot) that they don’t write the laws, they just interpret them, most prosecutors tend to take the position that they don’t write the laws, they just prosecute violations of the laws. Which is a pretty legitimate position, imo.
So neither I nor any other legislator nor any other attorney should be suggesting to any teenager (or any 20 – 21-year-old for that matter) who has both a coaching authorization and a significant other still in high school that s/he should or can safely maintain this status quo once the Governor signs off on HF 2474 – since to do so would be to suggest that (1) it’s OK to commit a serious crime – i.e., to break the law – if there appears to be a general consensus that the criminalized behavior shouldn’t be a crime, and that (2) there will be no negative legal repercussions if one chooses to do so. The first proposition is morally problematic (at least coming from a state legislator); the second is simply untrue.
So it’s all kind of a giant mess, at least for these 170 kids and their families. And, full disclosure, I share responsibility for this mess, since I voted yes on this bill (just like every other member of the legislature), despite being aware of its shortcomings, because …. I don’t know why, exactly. I guess partly because the bill had been worked out and agreed upon in advance by both House and Senate leadership, and partly because the bill could have been (and almost was) a lot worse, and partly because the bill actually does “fix” the Nicoletto loophole. Mostly that last one, since in the days following the Nicoletto ruling I received several emails and calls from folks back home urging me to “protect Iowa’s children” by fixing the Nicoletto loophole … and while it was pretty clear to me that these folks were being fed a somewhat ginned up/misleading version of the whole situation by someone or some organization, none of them seemed particularly interested in listening to my explanation re why the majority of Iowa’s children – those under 16 years old – were already “protected” from predatory school coaches, and why it’s important not to pass a bill that hasn’t been fully vetted just to pass a bill, because that way be dragons (aka negative collateral consequences). The folks who contacted me just wanted something done, right now, and I’m sure that was the same message that leadership was getting, only more so – and so, we did something. Yay. And while what we did solved one problem, it created others, including this really big problem for many teenagers across Iowa.
So: if you are a young man or woman with both a coaching authorization and a sweetie in high school, you are faced with a very difficult choice due to the imminent ratification of House File 2474 – and it’s a choice that you need to make fast. You can either (1) keep your coaching authorization or (2) keep your sweetie. You can’t keep both, at least not legally. That’s it – it’s that simple, and while it’s incredibly unfair that for no rational reason you are being forced to make this (probably extremely difficult) choice, if you don’t make the choice (which, I suppose, is also a choice), you risk prosecution for a felony sex offense. Seriously, you really do. So talk to your parents and your sweetie, and do what you need to do. Or talk to a lawyer about this and follow his or her advice. Unless he or she tells you you’ve got nothing to worry about, in which case find a different lawyer. Or call me.
Of course, those of you reading this probably don’t fall into the relevant category, because for some reason I don’t seem to have a big following amongst the young adult crowd. And since so far there’s been very little publicity about this bill and this problem (although I suspect that’s going to change quickly), I’m worried about the possibility of teenagers being charged with committing a serious crime despite the fact that they have no way of knowing that they are doing anything illegal. So if those of you who are reading this can pass this along to any young people you know who you think might have a coaching authorization (or if you can pass it along to their parents or friends) that would be great.
Bottom line, to say that this is not a good situation is an understatement, but I know that the intent of the bill was never to jam these kids up like this, and I know many of my colleagues are as concerned as I am about this situation – thus, I sincerely believe that we will be provided the opportunity to “fix the fix” next year. But until then, it’s all about mitigating and minimizing potential damage to innocent teenagers – so thanks for any help with getting the word out.