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Originally published Wednesday, January 14, 2009 at 12:00 AM

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Teacher-student sex ban doesn't always apply, appeals court rules

State law does not ban teachers from having sex with 18-year-old students, according to a ruling by a unanimous panel of appellate judges.

Seattle Times staff reporter

State law does not ban teachers from having sex with 18-year-old students, according to a unanimous ruling by a panel of appellate judges.

The state Court of Appeals ruling came in a case involving Matthew Hirschfelder, a former choir teacher at Hoquiam High School who was charged with first-degree sexual misconduct with a minor in 2006 after an 18-year-old member of the choir told police she had been involved in a months-long sexual relationship with him.

Hirschfelder, who was 33 at the time, denies any relationship occurred.

Hirschfelder asked a judge in Grays Harbor County Superior Court to dismiss the case, arguing that the girl was not a minor because she was 18. The judge refused to dismiss the charge but urged the state Court of Appeals to address the issue because the state's sexual-misconduct statute seemed contradictory.

In an opinion issued Tuesday, a three-member panel of the appeals court agreed that the statute was unconstitutionally vague, and sent the case back to the Superior Court to be dismissed.

Hirschfelder argued that, even if the facts as alleged in his case were all true, no crime was committed. He argued that the statute on sexual abuse of a minor does not define the term "minor," and that both common law and other Washington statutes define that term as a person under the age of 18.

The appeals judges agreed, pointing out that the law was grouped with other statutes prohibiting the sexual exploitation of children, where the term "minor" is defined as someone under 18.

At issue was one section of the sexual-misconduct law that prohibits school employees from having sex with a student who is "at least 16 years of age," not married to the teacher and at least five years younger. The other two sections of the law, which deal with foster parents and others, apply only to sex with people "under the age of 18."

The confusion sent the appeals judges to the legislative history of the current statute, which has undergone numerous amendments and changes — and one gubernatorial veto — since it was first proposed in 2001.

They concluded that the Legislature's intent was to protect children under the age of 18 from predatory teachers, coaches or mentors.

"Thus, we conclude that the legislative history of [the statute] clarifies that the legislature intended ... to criminalize only sexual misconduct between school employees and 16- and 17-year-old students," wrote Judge Marywave Van Deren in an opinion signed by colleagues Christine Quinn-Brintnall and J. Robin Hunt.

The panel said Hirschfelder can seek to have the costs of the lawsuit paid by the county.

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Hirschfeld's attorney, Robert Martin Morgan Hill of Olympia, said Hirschfeld still faces possible discipline by the state Superintendent of Public Instruction. State policies prohibit any sexual contact between students and teachers.

Hirschfelder was placed on administrative leave in 2006 pending an investigation by the Hoquiam School Board. Hill said Hirschfeld would like to retain his teaching certificate but had no plans to return to Hoquiam High.

A telephone call to the Grays Harbor Prosecutor's Office was not returned Tuesday. Prosecutor Stew Menefee told The Daily World in Aberdeen that he is considering an appeal.

Hirschfeld was joined in his legal fight by the Washington Education Association (WEA), the state's largest teachers union, and by the Washington Association of Criminal Defense Lawyers.

Rich Wood, a spokesman for the WEA, said the union involved itself "because we were seeking clarity for an ambiguous law. This ruling gives us that."

Mike Carter: 206-464-3706 or mcarter@seattletimes.com

Copyright © 2009 The Seattle Times Company

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