When a 40-year-old Frederick County high school teacher was accused in October of having sex with her 16-year-old student, authorities were unable to charge her with a crime because of a loophole in state law.
Because the student was 16 - the age of consent in Maryland - and because sexual contact did not occur on school grounds, during a school day or during a school-sanctioned event, the Frederick state's attorney could not charge the teacher with child abuse, according to a 1997 opinion from the Maryland attorney general.
"If ... sex were to have occurred during a school-related function, it would be considered child abuse, because the teacher would be held to a higher standard because of her relationship with the boy," said Charles Smith, Frederick deputy state's attorney.
The opinion could call into question the arrests of two Carroll County teachers who were charged in the past week with having inappropriate sexual contact with teen-age boys they met at Francis Scott Key High School.
Like the Frederick County case, the sexual acts Kimberly L. Merson and Tracie L. Mokry are accused of committing with students occurred off school grounds.
Carroll Deputy State's Attorney Tracey Gilmore said that won't affect the decision to prosecute the case. "That is not case law," she said. "It's just an advisory opinion. We do believe this case is egregious enough that the argument has to be made."
She said that investigators have additional information about conversations that took place and plans that were made at the school. "The state's argument will be that there is a sufficient connection between the school" and encounters outside school, Gilmore said.
Merson's attorney, Richard D. Bennett, declined to comment yesterday on "the legalities of the situation," but added, "You have aptly noted some of the legal questions that will arise here."
According to the Frederick News-Post, the female teacher, who worked with the boy at Urbana High School, established a friendship when the boy missed several weeks of school in the winter because of an accident. The relationship became sexual in the spring and the two had six sexual encounters, according to the newspaper.
Frederick County school Superintendent Jack Dale was unavailable for comment yesterday. Jamie Cannon, executive director of legal services for Frederick County public schools, confirmed that the teacher involved in the case had resigned, but could not comment further because it was a personnel matter.
During the last General Assembly session, Del. Carol S. Petzold, a Montgomery Democrat, introduced a bill in the House designed to strengthen state law and close the loophole. The bill did not make it out of committee.
Petzhold could not be reached for comment yesterday. In a letter to The Sun dated Tuesday, she said she planned to reintroduce the bill next session.
"Adults employed at a school have extensive opportunity to cultivate students for good or bad," she wrote. "There should be no gaps in the laws intended to protect children who come under this influence."
Sun staff writer Jennifer McMenamin contributed to this article.