Prosecutors, legislators criticize 'gap' in school sex laws

Prosecutors and legislators are pushing to close what they describe as a loophole in Maryland sex offense laws, citing recent cases in which they suspected that a teacher and a part-time coach became sexually involved with high-school-age students.

State law bars sexual contact between "full-time permanent" employees who hold a "position of authority" over students who are minors at the schools where they work — even if the student is older than 16, Maryland's age of consent. The list in the law "includes a principal, vice principal, teacher or school counselor."

The law allows full-time teachers to have relationships with students 16 and older at other schools. It says nothing about part-timers, volunteers and contract workers, such as substitute teachers and coaches who may be influential in high school students' lives.

Prosecutors in Anne Arundel County say law's limitations prevented them from charging a part-time high school sports coach with a sex offense, though they charged him with another crime. And in a Montgomery County case, the state dropped charges against a teacher accused of having a sexual relationship with a student at another school; he denied the allegations.

"The issue really concerns the person in a position of authority," said Montgomery County State's Attorney John J. McCarthy, who is among those who want to expand the scope of the law. Advocates for stronger restrictions say they are looking into everything from including all adults who supervise students to making a violation a more serious crime.

The issue has come up in recent years in the General Assembly but has failed to gain traction amid worries about further complicating sexual misconduct laws. Others worry that a change might discourage volunteers, especially young people who are just out of school themselves and have existing relationships with students.

But McCarthy said the recent examples should help elevate the issue this year. Parents, he said, don't send their children to school to have adults who are authority figures sexually exploit them.

"You only need one or two concrete examples. And now we have them," McCarthy said.

Anne Arundel County State's Attorney Frank R. Weathersbee said the issue of sexual relationships in schools should not be considered so complex.

"It's kind of a silly thing — if you are a coach or a teacher who has control over children, it ought to be a crime," he said.

But in some cases, it's not, said Lisae C. Jordan, general counsel of the Maryland Coalition Against Sexual Assault.

"People in authority are people in authority 24-7 from a child's perspective," Jordan said.

A full-time Montgomery County middle-school teacher was charged in February with having sex with a 16-year-old student of the county high school where he was a part-time coach — a girl whom he'd taught in middle school. The charges against Scott D. Spear, then 47, were dropped a month later. He denied having sex with the 16-year-old and resigned from his job, his lawyer said.

Anne Arundel County prosecutors (who handled the case because Montgomery's McCarthy knew Spear personally) said the reason he could not be prosecuted was that he was not a full-time teacher at the teen's school.

"The case was dropped because of the descriptions of the law which did not apply to Mr. Spear," said his lawyer, Steven VanGrack. His teaching license was revoked, according to the Maryland State Department of Education.

And last September, prosecutors said they were unable to use sex offense laws to pursue a case that they said involved an inappropriate relationship between a then-part-time coach at Archbishop Spalding High School in Severn and a 16-year-old student.

The girl told Anne Arundel County police she'd dated Brian T. Funk, 40, for about five months — until her father caught them kissing in July 2011 — and that they did not have a sexual relationship, according to police. But police said the two exchanged sexually explicit photos on their cell phones, leading to a child pornography charge — that law applies to anyone under 18.

"The reason we were able to prosecute in that case was because of the pornographic images," said Kristin Fleckenstein, spokeswoman for Weathersbee's office. Funk was placed on probation and ordered onto the state's sex offender registry for 25 years. Funk's attorney could not be reached for comment.

Funk entered an Alford plea in the case, acknowledging that prosecutors had enough evidence to convict him but not admitting guilt, and said in court that he was in counseling and realized that he "allowed the boundaries to blur" with the girl.

In contrast, a former Glen Burnie High School English teacher is serving a seven-year prison sentence and will have to register as a sex offender for life for having sex with three students at his school who were ages 15 and 16.

Jeffrey D. Sears, 30, entered Alford pleas in April to sexual abuse of a minor and a misdemeanor sex offense.

The existing law makes a conviction a misdemeanor, or minor crime, punishable by a fine of up to $1,000 and a year in jail, with a repeat offender facing up to three years in jail.

Sen. Brian E. Frosh, chairman of the Senate Judicial Proceedings Committee, called making changes in the law "a very complex difficult problem" due largely to the difficulty of crafting a law to cover only the people intended to be included.

"We have the problem of folks who are in a position of authority that are hard to define," he said.

Particularly vexing are young assistant coaches, who may have a girlfriend or boyfriend at the school where they coach, he said.

"We are not seeking to go after the high school sweethearts," said Luke H. Clippinger, a Baltimore Democrat who is employed as a prosecutor in Anne Arundel County and is among legislators working on bills.

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