District Attorney Suggests That It May Be a Crime for Teachers to Follow the New State Law Mandating Certain Forms of Sex Education
Eugene Volokh • April 8, 2010 3:41 pm
The letter, from Juneau (Wisconsin) County District Attorney Scott Southworth, is
here. The D.A. is complaining about the new
state statute on sex education; some of his objections:
[T]he new law ... [p]romotes the exual assault of children — §118.019(2)6 requires schools to provide instruction on how to utilize contraception. However, it is a crime to engage in sexual intercourse with any child under the age of 18.... Forcing our schools to instruct children on how to utilize contraceptives encourages our children to engage in sexual behavior, whether as a victim or an offender. It is akin to teaching children about alcohol use, then instructing them on how to make mixed alcoholic drinks. While it is true that some children will wrongly choose to engage in sexual behavior before entering adulthood, our school districts should never promote illegal activity.
[The new law e]xposes our teachers to possible criminal liability — §948.40 of Wisconsin’s Criminal Code deals with “Contributing to the Delinquency of a Child.” Anyone who intentionally encourages or contributes to the delinquent (criminal) act of a child can be charged under this statute. For example, if a teacher instructs any student aged 16 or younger how to utilize contraceptives under circumstances where the teacher knows the child is engaging in sexual activity with another child — or even where the “natural and probable consequences” of the teacher’s instruction is to cause that child to engage in sexual intercourse with a child — that teacher can be charged under this statute. The teacher need not be deliberately encourag[ing] the illegal behavior: he or she only need be aware that his or her instruction is “practically certain” to cause the child to engage in the illegal act.
Now I realize that there are disputes about whether teaching high school students about contraceptives might lead to more sex, and even more unprotected sex. I’m inclined to doubt that, since I suspect that teenagers will (or will not) have sex regardless of what they’re taught about contraception in school, but that the teaching might lead them to have safer sex. Still, I’m certainly open to serious debate (preferably with actual social science evidence) on the subject.
But suggesting that teachers might be committing a crime for teaching students about how to reduce risks?
First, teachers can’t be committing a crime for doing something the new statute authorizes. But, second, it just isn’t a crime to teach students about using contraceptives even when one knows the student’s sexual conduct is illegal (let’s even assume that the teacher knows both the student and the sexual partner is underage, so that both are committing a crime).
The relevant state statute,
Wisc. Stat. § 948.40, provides,
No person may intentionally encourage or contribute to the delinquency of a child. This subsection includes intentionally encouraging or contributing to an act by a child under the age of 10 which would be a delinquent act if committed by a child 10 years of age or older... Under this section, a person encourages or contributes to the delinquency of a child although the child does not actually become delinquent if the natural and probable consequences of the person’s actions or failure to take action would be to cause the child to become delinquent.
Moreover, under
§ 939.23,
“Intentionally” means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.
So either the teacher must have the
purpose to cause minors to have sex as a natural and probable consequence of his actions — not just view this as a likely but regrettable side effect of his teaching, but actually
wish that the minors have sex — or the teacher must be aware that his teaching “is practically certain to cause” their having sex. But even if sex education might increase the probability that some students will have sex, it surely isn’t the case that teaching children about contraceptives “is practically certain to cause” their having sex. And I doubt that teachers are teaching children about contraceptives with the specific
purpose of getting them to have sex.
On top of that, the very scenario that the prosecutor first stresses — where the teacher “knows the child is engaging in sexual activity with another child” — is the one where the claim that the contraceptive teaching is “practically certain” to cause the child to engage in sex is at its weakest. The hypothesis would be that (1) the child is already having sex, but (2) the child was likely to stop having sex because of lack of contraceptive education, yet (3) the teacher’s teaching the child about contraceptives is now “practically certain to cause” the child to continue having sex. Really? How likely is that?
So in fact, teachers are not at legal risk of actually committing a crime, despite what the prosecutor says. Of course, the prosecutor’s letter might suggest (whether sincerely or not) that the teachers are at risk of being prosecuted by this prosecutor. But that’s not because the teachers are actually likely to be violating the law.
And beyond this, note that the statute on contributing to the delinquency of a minor applies to “[a]ny person,” with no exception for parents. So under the prosecutor’s theory, a parent who suspects that his son or daughter is having sex would be committing a crime simply for telling the child how to minimize the risk of unwanted pregnancy and sexually transmitted diseases by using contraceptives. And the parent “could face either misdemeanor or felony charges with maximum punishment ranging from 9 months of jail to up to six years of prison,” to quote the prosecutor’s admonition to teachers.
If that’s so, then Wisconsin’s criminal law is seriously broken — though fortunately, I think the problem is with the prosecutor, not with the Wisconsin statutes. Thanks to Connie Conine for the pointer.
