"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

Plain language

“I plead not guilty, your honor, because regardless what the law on the books actually says, it gets described as something else in some places, so I shouldn’t be held to it …”

Nothing not far from that was the argument in in the recent Washington Supreme Court case of Washington v. Matthew J. Hirschfelder. And the Washington Court of Appeals bought it.

The facts of the case, as the Supreme Court set them out, are clear enough: “Matthew Hirschfelder was employed as a choir teacher at Hoquiam High School. He had sexual intercourse in his office with a member of the high school choir, A.N.T., several days prior to her graduation in 2006. At the time, Hirschfelder was 33 and A.N.T. was 18. Hirschfelder was charged with sexual misconduct with a minor in the first degree.”

That was the name of the crime, which seem to suggest that it refers to having sex with someone under 18. But that’s not what the law actually says. It says this: You’ve committed the offense if “the person is a school employee who has, or knowingly causes another person under the age of eighteen to have, sexual intercourse with a registered student of the school who is at least sixteen years old and not married to the employee, if the employee is at least sixty months older than the student.”

Take out the “or knowingly causes” element, and you have these pieces which aren’t disputed: (1) the person charged is a school employee, which Hirschfelder was, (2) the other party was a registered student at least 16 years old, which the student was, (3) and the two have to be not married to each other and at least five years apart in age, both of which they also were.

You could argue, maybe, that this shouldn’t have been a criminal offense. But how do you argue that all of the elements of it, clearly set out in the law, and given that the facts were undisputed, weren’t there?

Reading it over a couple of times, our heads are still shaking. Although, it should be noted, that Washington Supreme Court reversed the Court of Appeals on this one, and did uphold the law. As it reads on the books.

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One Comment

  1. fortboise said:

    I’m not sure I follow your opinion in the matter.

    Reading the opinion, I gather that the Legislature intended to criminalize sex with minors (wasn’t that already a criminal offense?), but screwed up (ha!) the language, and thus made sex with a non-minor criminal. If A.N.T. happened to be 27, the offense would have been the same.

    And the legislature has since corrected their mistake?

    But the Supreme Court upheld the conviction on the uncorrected law.

    My head is shaking too, but it seems like a different direction than yours.

    November 19, 2010

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