The Alabama Court of Criminal Appeals has reversed a local judge's ruling that called the state's teacher-student sex law unconstitutional.
The criminal cases against Carrie Witt and David Solomon have been sent back to Morgan County Circuit Court. Both were school employees accused of having sex with students.
Their cases recently were reviewed by the appeals court after Morgan County Circuit Judge Glenn Thompson declared Alabama's teacher-student sex law unconstitutional nearly a year ago.
In his ruling, Thompson dismissed the charges against Witt, a former Decatur High School teacher, and David Solomon, an ex-aide at Falkville High.
"The Court finds this statute unconstitutional as applied to these defendants," Thompson wrote in an August 2017 order.
"Because Solomon and Witt failed to present any evidence regarding the facts that led to their indictments, they failed to meet their burden of establishing that their conduct was constitutionally protected or that (the statute) was being unconstitutionally applied as to them," the appellate court wrote in an opinion issued Friday.
Witt's attorneys Robert Tuten and Nick Heatherly said they will ask the Supreme Court of Alabama to consider the case and rule on the constitutionality of the teacher-student sex law.
The law in question prohibits any school employees from having sex with students who are younger than 19. If teachers or other school employees violate the law, they can be charged with a Class B felony that carries a punishment up to 20 years imprisonment. The law also requires they register as sex offenders if convicted. Consent is not a defense.
Tuten said they believe the law is too vague and broad to be considered constitutional.
Witt was arrested in March 2016 after police said she had sex with two teenagers when they were her students at Decatur High. Witt was a history, psychology and social studies teacher, who also coached girls' golf and junior varsity cheer.
Solomon was accused of having sex with a 17-year-old student while he was working as an aide at Falkville High. Police said the two met at school, but the sexual contact happened in nearby Hartselle.
Morgan County District Attorney Scott Anderson's office was prosecuting Solomon and Witt before the law charges were dismissed by Thompson. Anderson said he's not surprised by the appellate court's ruling.
"I would have been shocked if they held it unconstitutional," he said. "They decided the state had an interest to protect these children and that the legislature can design the criteria by which to protect them."
Defense attorneys have argued teachers' 14 th Amendment equal protection rights are violated by the law that was created in 2010. The law treats teachers and other school employees differently from other citizens, the attorneys argue in court records. Other adults having consensual sex with 16-year-olds do not face criminal prosecution, defense attorneys argued.
Prosecutors have argued Alabama law also prohibits jailers and probation officers from having sex with people under their care. The Attorney General's Office handled the appeal.
In his order Thompson wrote that the law is problematic because it doesn't consider whether the school employee and student are in the same class, school or school system. He said the law is written in a way that doesn't let the court determine:
"This court does not endeavor to absolve any wrongdoing or to excuse the defendants," Thompson wrote at the time. "Moreover, the court does not encourage any similarly situated party to engage with impunity in what may very well be criminal behavior."
Thompson cited student-teacher sex laws in other states that he believes are constitutional. Those include laws in Texas, Arkansas and Kansas. Those laws either implicitly address sex between students and employees who exercise power over them, or students and employees at the same school.
". this Court has recently rejected the circuit court's rationale for holding (the statute) unconstitutional -- that students who have reached the age of 16 have the ability to consent to sexual activity; thus, the State may not proscribe sex acts between a teacher and a student without requiring the State to show that the teacher used his or her position to unduly influence the student's decision to consent," the appellate justices wrote.
Thompson's decision was reversed and remanded.
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