Teachers Sexting With Minors is Free Speech in Texas
On October 31, 2009, 49-year-old John Christopher Lo, a choir director in the Cleveland Independent School District in Cleveland, Texas, sent sexually explicit text messages to a former student at a school where he previously taught. The boy, who was under 17 years old, notified his parents and school administrators. Lo was arrested in January 2010.
On October 2, 2012, a 30-year-old history and social studies teacher in Everman, Texas, Sean Arlis Williams, began texting with one of his students. Over the next six days, they would exchange 688 text messages that would quickly escalate to a sexual nature. They talked about walking around their houses naked, sexual preferences and fantasies of what they would like to do with each other sexually. She was 13 years old. The next week, the mother of the girl contacted the police and school officials when she found out. The junior high school teacher was arrested in January 2013.
In September 2013, David Victorick, a biology teacher and assistant golf and basketball coach at College Park High School in Conroe, Texas was arrested for sending sexually explicit message to an underage girl. The texting occurred over the previous summer. While he had known her, she was never a student of his. He was 57 years old.
All three of these men were charged under a 2005 Texas statute that makes online solicitation of a minor a second degree felony if the minor is under 14 years of age, or a third degree felony if under 17 years of age. The statute makes it a crime to knowingly and intentionally send electronic messages containing sexually explicit material or language for the purpose of arousal or sexual gratification to anyone under the age of 17. It was created to help stop sexual predators at the “grooming” stage of sexual abuse – before they meet the minor and engage in any abuse.
In October 2013, the Texas Criminal Court of Appeals ruled a portion of the law unconstitutional because it violated the defendant’s First Amendment rights.
John Lo had appealed his indictment on the grounds that the 2005 statute was overly broad and made any sexually explicit language – even that which was not obscene – illegal. Lo’s attorney argued that “simple profanity or vulgarity — not rising to the level of obscenity — is constitutionally protected speech.” Lo’s attorney never discussed the charges as this was a motion to quash the indictment.
While the court agreed that the state had a compelling interest to protect minors from sexual predators, the subsection in question was too broad. For example, passages from 50 Shades of Gray or even Shakespeare’s Troilus and Cressida could be deemed “sexually explicit” under the statute. This would mean that repeating lyrics to a song or lines from a movie or TV show over the Internet – all of which is protected speech, would be deemed a felony. The Supreme Court has repeatedly ruled that constitutional rights are not absolute. However, in the case of the First Amendment, a law cannot restrict “constitutionally protected speech on the basis that such restrictions are necessary to effectively suppress constitutionally unprotected speech, such as obscenity, child pornography, or the solicitation of minors.”
In other words, as Lo’s attorney Mark Bennett so eloquently put it, “It’s OK for adults to talk dirty to children.”
A study in 2011 showed that sexting was psychologically damaging for teens, with higher rates of depression and anxiety among those who send and receive sexual suggestive texts or images. Each of these adult men, all teachers, were in positions of power and, therefore, had already earned the trust of these students – one of the first steps of a predator’s process for grooming a child he plans to abuse. In the case of the 13-year-old girl, her teacher had already told her to not tell anyone about their communications. Secrecy is how the predator maintains control.
However, the way the law is written, as Sean Williams’ attorney points out, unless the adult is trying to get the minor to do something illegal, like meet for sex, they can no longer be convicted under the statute.
The October ruling had immediate repercussions. In November, the prosecution was forced to drop the charges against David Victorick since he was originally indicted under the now unconstitutional section. He was immediately re-indicted under a different section, charging him with knowingly soliciting a minor and intending to engage in sexual conduct with her. However, the trial was put on hold after the defense filed an appeal, arguing that Victorick’s actions did not match the elements of the new indictment. As for Lo, the state has petitioned for a rehearing, though due to the unanimous decision it is unlikely it will be granted. If unsuccessful, the state could petition the U.S. Supreme Court or drop the charges.
In February, the charges against the teacher who sexted with his 13-year-old student were dropped in light of the court’s ruling. No other charges were filed against Sean Williams because the prosecutor claimed that his actions did not fit the requirements of existing laws. The court’s ruling strongly suggests that the legislature revisits the law in order to more narrowly define the section in question without violating the constitution.
In the meantime, Lo’s attorney, Mark Bennett, is confident that the charges will be dropped against his client as well. He also believes that people convicted under the 2005 statute be told they now have an avenue for redress. As for those who feel the state was right in trying to address this behavior, Bennett says, “Parents have the job of dealing with this. This is not the government’s job.”