E-Filed

02/06/2018 09:41:50 AM
Honorable D. Scott Mitchell
Clerk of the Court

CASE NUMBER CR-17-0203

IN THE COURT OF CRIMINAL APPEALS

FOR THE STATE OF ALABAMA

CHARLI JONES PARKER

APPELLANT

VS.

STATE OF ALABAMA
APPELLEE

ON APPEAL FROM THE CIRCUIT COURT OF

PICKENS COUNTY, ALABAMA
CC16-123; CC16-177
_______________________________________________________
BRIEF OF APPELLANT
CHARLI JONES PARKER
_______________________________________________________

M. Virginia Buck
Attorney for Appellant
13112 Martin Road Spur
Northport, AL 35473
[email protected]
(205) 752-6773
 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested in this case.

i
 TABLE OF CONTENTS

Table of Contents........................................ii

Table of Authorities.....................................iv

Statement of the Case.....................................1

Statement of the Issues...................................6

Statement of Facts........................................7

Standard of Review........................................9

Summary of the Argument..................................10

ARGUMENT.................................................14

I. THE TRIAL COURT WAS WITHOUT JURISDICTION TO ACCEPT

PARKER’S GUILTY PLEAS BECAUSE THE STATUTE UNDER WHICH
SHE WAS INDICTED WAS INAPPLICABLE TO HER CONDUCT AT
THE TIME OF ITS COMMISSION...............................15

A. THE STATUTE UNDER WHICH PARKER WAS INDICTED

WAS INAPPLICABLE TO SEXUAL CONDUCT BETWEEN SCHOOL
EMPLOYEES AND STUDENTS IN PRIVATE SCHOOLS AT THE
TIME OF PARKER’S CONDUCT.............................15

B. THE INAPPLICABILITY OF THE STATUTE TO PARKER’S

CONDUCT AT THE TIME OF ITS COMMISSION PRESENTS A
JURISDICTIONAL QUESTION..............................24

II. ALA. CODE §13A-6-81, AS APPLIED TO PARKER, VIOLATES

THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.......28

A. THE UNITED STATES SUPREME COURT HAS RECOGNIZED

A CONSTITUTIONAL RIGHT TO PRIVATE, CONSENSUAL SEXUAL
INTIMACY.............................................29

B. ALA. CODE §13A-6-81 INFRINGES ON PARKER’S RIGHT

TO PRIVATE, CONSENSUAL SEXUAL INTIMACY...............36

C. ALA. CODE §13A-6-81, AS APPLIED IN THIS CASE,

CANNOT SURVIVE HEIGHTENED SCRUTINY...................42

ii
 D. ALA. CODE §13A-6-81, AS APPLIED IN THIS CASE,
IS UNCONSTITUTIONAL UNDER THE RATIONAL BASIS TEST....51

III. ALA. CODE §13A-6-81, AS DEFINED BY FORMER §13A-6-80,

VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT................................................60

Conclusion...............................................65

Certificate of Service...................................65

Appendix..................................................a

iii
 TABLE OF AUTHORITIES

Cases
1568 Montgomery Highway, Inc. v. City of Hoover,
45 So.3d 319 (Ala. 2010) ...................... 9, 51, 52, 53
Bracewell v. State,
401 So.2d 123 (Ala. 1979) ................................ 19
Ex parte Bertram,
884 So.2d 889 (Ala. 2003) ................................ 22
Ex parte Jackson,
625 So.2d 425 (Ala. 1992) ................................ 18
Ex parte Jarrett,
89 So.3d 730 (Ala. 2011) ................................. 26
Ex parte Key,
890 So.2d 1056 (Ala. 2003) ................................ 9
F.C. v. State,
742 So.2d 200 (Ala. Crim. App. 1999) ..................... 26
Flanigan’s Enterprises, Inc. of Georgia, et al v. City of
Sandy Springs, Georgia,
831 F.3d 1342 (11th Cir. 2016) ........... 34, 35, 36, 52, 55
Flanigan’s Enterprises, Inc. of Georgia, et al v. City of
Sandy Springs, Georgia,
864 F.3d 1258 (11th Cir. March 14, 2017) ................. 36
Hankins v. State,
989 So.2d 610 (Ala. Crim. App. 2007) ................. 21, 23
Herring v. State,
100 So.3d 616 (Ala. Crim. App. 2011) ..................... 47
In re Opinion of the Justices,
100 So.2d 681 (Ala. 1958) ................................ 23
Ivery v. State,
686 So.2d 495 (Ala. Crim. App. 1996) ..................... 21
Katz v. U.S.,
389 U.S. 347 (1967) ...................................... 41
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) ............................. 33
Lawrence v. Texas,
539 U.S. 558 (2003) .. 2, 11, 28, 29, 30, 31, 32, 33, 34, 35,

iv
38, 39, 41, 42, 43, 44, 51
Little v. Consolidated Pub. Co.,
83 So.3d 517 (Ala. Civ. App. 2011) ....................... 53
Louisville & N.R. Co. v. Western Union Telegraph Co.,
71 So. 118 (Ala. 1915) ................................... 20
Murray v. State,
922 So.2d 961 (2005) ..................................... 24
Obergefell v. Hodges,
135 S.Ct. 2584 (2015) .... 28, 32, 34, 35, 36, 41, 52, 53, 55
Parks v. State,
565 So.2d 1265 (Ala. Crim. App. 1990) .................... 37
Paschal v. State,
388 S.W.3d 429 (Ark. 2012) ....................... 44, 45, 46
Petty v. State,
414 So.2d 182 Ala. Crim. App. 1982) ...................... 27
Pinigis v. Regions Bank,
977 So.2d 446 (Ala. 2007) ................................ 21
Reliable Consultants, Inc. v. Earle,
517 F.3d 738 (5th Cir. 2008) ......................... 33, 52
Sanders v. State,
854 So.2d 143 (Ala. Crim. App. 2002) ..... 11, 25, 26, 27, 28
Sell v. United States,
539 U.S. 166 (2003) ...................................... 43
State v. C.M.,
746 So.2d 410 (Ala. Crim. App. 1999) ..................... 60
State v. Clinkenbeard,
123 P.3d 872 (Wash. App. 2005) ................... 54, 55, 56
State v. Mole,
994 N.E.2d 482 (Ohio Ct. App. 2013) ...... 57, 58, 59, 62, 63
Stoner v. State,
418 So.2d 171 (Ala. Crim. App. 1982) ..................... 20
Tennyson v. State,
101 So.3d 1256 (Ala. Crim. App. 2012) ................ 22, 23
U.S. v. Windsor,
133 S.Ct. 2675 (2013) ... 11, 28, 31, 32, 34, 35, 36, 41, 52,
53, 55

v
United States v. Johnston,
75 M.J. 563 (N.M. Ct. Crim. App. 2016) ........... 37, 38, 39
Vlandis v. Kline,
412 U.S. 441 (1973) ...................................... 50
W.B.B. v. H.M.S.,
141 So.3d 1062 (Ala. Civ. App. 2013) ..................... 21
Washington v. Glucksberg,
521 U.S. 702 (1997) ...................................... 32
Williams v. Attorney General,
378 F.3d 1232 (11th Cir. 2004) ............... 33, 34, 35, 52
Williams v. State,
565 So.2d 282 (Ala. Crim. App. 1990) ..................... 20
Witt v. Department of Air Force,
527 F.3d 806 (9th Cir. 2008) ...................... 42, 43, 44
Statutes
Act 2010-497 ............................................. 16
Act 2016-354 ............................................. 19
Ala. Code §13A-6-70 ...................................... 37
Ala. Code §13A-6-80 .......... 16, 18, 24, 49, 50, 51, 60, 61
Ala. Code §13A-6-81 . 16, 18, 24, 28, 29, 36, 41, 46, 47, 49,
50, 51, 53, 60, 61
Ala. Code §13A-6-83 ...................................... 17
Ala. Code §16–24–1 ....................................... 17
Ala. Code §16-24B-3 ...................................... 18
Ala. Code §36–26–100 ..................................... 18
Constitutional Provisions
Ala. Const. Art. XIV, Section 256 ........................ 47
U.S. Const. amend. XIV, §1 ............................... 29

vi
 STATEMENT OF THE CASE

Charli Parker appeals her convictions based on her

pleas of guilty to two counts of a school employee engaging

in deviant sexual intercourse with a student under the age

of 19 years in violation of Ala. Code §13A-6-81.

On March 31, 2016 Parker was indicted in a multi-count

indictment in case number CC-16-123. The various counts

alleged that Parker, “while being a school employee”

engaged in sex acts and deviant sexual intercourse “with a

student, to-wit: M.E., who was under the age of nineteen

(19) at the time the offense occurred, in violation of

Section 13A-6-81.” (C.48-52). The various counts alleged

different locations the acts occurred.

Similarly, on June 1, 2016 Parker was indicted in a

multi-count indictment in case number CC-16-177. Various

counts alleged that Parker, “while being a school employee”

engaged in sex acts and deviant sexual intercourse “with a

student, to-wit: W.L.A., who was under the age of nineteen

(19) at the time the offense occurred, in violation of

Section 13A-6-81.” (C.129-133). The counts alleged

different locations the acts occurred.

1
 On July 6, 2017 the Trial Court consolidated case

numbers CC-16-123 and CC-16-177 on the motion of the

Prosecution. (C.86).

On August 11, 2017 Parker filed a Motion to Hold Ala.

Code §13A-6-81(a) Unconstitutional As Applied in both

cases. (C.88, 163). The Motion averred that the statue is

unconstitutional under Lawrence v. Texas, 359 U.S. 558

(2003) and its progeny. The Attorney General was served

with a copy of this pleading. (C.89, 164).

On August 14, 2017, the Trial Court denied the Motion

to Hold §13A-6-81(a) Unconstitutional As Applied without a

hearing. (C.90, 165).

On August 14, 2017, Parker filed a Motion for

Continuance and to Have Case Placed on Hold in both cases.

(C.91, 166). The Motion pointed out that the Circuit Court

of Morgan County had declared Ala. Code §13A-6-81

unconstitutional, and that ruling was being appealed by the

State. Parker urged the Court to continue her cases until

such time as the Morgan County case was resolved in the

appellate courts. The Record does not contain a ruling on

the motion, but the cases were not continued.

2
 Also on August 14, 2017, Parker filed a Notice of

Intent to Reserve Issue for Appeal in both cases. (C.94,

169). The Motion noted that Parker was scheduled to enter

a guilty plea the next day. The Motion informed the Court

that Parker intended to specifically reserve for appeal the

Trial Court’s denial of her Motion to hold the statute

unconstitutional.

On August 15, 2017 Parker pleaded guilty to count 2 in

case number CC-16-123. (R.2, 3, 9). Count 2 in case number

CC-16-123 charged,

“The grand jury of said County charge that, during the

calendar month October 2014, Charli Jones Parker whose
name is otherwise unknown to the Grand Jury did while at
or near Graham Cemetery, Reform, Pickens County,
Alabama, while being a school employee, engage in
deviant sexual intercourse with a student to wit: M.E.,
who was under the age of nineteen (19) at the
time the offense occurred, in violation of Section 13A-
6-81 of the Code of Alabama.”

(C.50, R.1-2).

Parker was sentenced to 15 years, with a 3 year split,

in case number CC-16-123. (R.9).

Parker also pleaded guilty to count 2 in case number

CC-16-177. (R.10, 15). Count 2 of CC-16-177 charged,

“The Grand Jury of said County charge that, before the

finding of this indictment, Charli Jones Parker, whose
name is otherwise unknown to the Grand Jury did, while
at or near Pine Grove Cemetery, Reform, Pickens

3
 County, Alabama, being a school employee, engage in
deviant sexual intercourse with a student, to wit:
W.L.A., who was under the age of nineteen (19) at the
time the offense occurred, in violation of section
13A-6-81 of the Code of Alabama.”

(C.131, R.10-11).

Parker was sentenced to 15 years, sentence suspended,

in case number CC-16-177. (R.15).

During the plea hearing, Parker specifically reserved

for appeal her challenge to the constitutionality of Ala.

Code §13A-6-81 in case number CC-16-123:

“MR. JONES: Your Honor, the issue on appeal I want to

reserve is the constitutionality of the statute. The
one that is involved here is 13A-6-81. There’s been a
recent opinion out of Morgan County finding that
statute unconstitutional on several grounds. We are
reserving all constitutional challenges to that
including specifically but not limited to its
violation of the Due Process Clause and the Equal
Protection Clause of the 14th Amendment of the United
States Constitution.”

(R.6-7).

Parker reserved the same issue in case number CC-16-

177:

“MR. JONES: Your Honor, we reserve all Constitutional

challenges to the Statute 13A-6-81, particularly those
that were subject of a Morgan County Circuit Court
order that found the statute unconstitutional; but
those would include but not be limited to violation of
the Due Process and Equal Protection Clause of the
14th Amendment of the United States Constitution.”

(R.14).

4
 The Trial Court reiterated its earlier denial of the

constitutional challenges to the statute. (R.7, 14).

Parker waived the right to an appeal bond and began serving

her sentence on September 11. (R.7).

On September 13, 2017 Parker filed a Motion for

Judgment of Acquittal Or in the Alternative for New Trial

or Arrest of Judgment in both cases. (C.101, 176). Parker

again noted that §13A-6-81 had been declared

unconstitutional by the Circuit Court of Morgan County in a

similar case. Parker again averred that §13A-6-81 is

unconstitutional under “the Due Process and Equal

Protection provisions of the Fourteenth Amendment of the

Constitution of the United States.”

The post-judgment motions were denied by operation of

law sixty days after the date of sentencing. The date of

sentencing, as noted above, was August 15, 2017, so the

motions were denied on October 14, 2017. Notice of appeal

was filed in both cases 37 days later on November 20, 2017.

(C.108, 179). The appeal was timely filed since the Notice

of Appeal was filed within 42 days of the denial of the

post-trial motions.

5
 STATEMENT OF THE ISSUES

WHETHER THE TRIAL COURT HAD JURISDICTION TO ACCEPT PARKER’S

GUILTY PLEAS WHEN THE STATUTE UNDER WHICH PARKER WAS
INDICTED WAS INAPPLICABLE TO SEXUAL ACTIVITY BETWEEN SCHOOL
EMPLOYEES AND STUDENTS IN PRIVATE SCHOOLS AT THE TIME OF
PARKER’S CONDUCT

WHETHER ALA. CODE §13A-6-81 IS UNCONSTITUTIONAL AS APPLIED

TO PARKER UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION

WHETHER ALA. CODE §13A-6-81 IS UNCONSTITUTIONAL AS APPLIED

TO PARKER UNDER THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

6
 STATEMENT OF FACTS

Charli Jones Parker was a teacher at Pickens Academy, a

private Christian school for students k-12 which is located

in Pickens County, during 2013, 2014, 2015, and 2016.

(C.10, 48-52, 129-133, Supp. 19, 22).1

Parker had sexual relationships with two young men who

were enrolled at Pickens Academy during the time she was

employed there. The first relationship, with W.L.A.,

lasted from October 2012 to July 2014. (C.131-133, Supp.

21). W.L.A., who was born in October 1996, would have been

16 when the relationship began. (Supp. at 22). Parker, who

was born in March 1986, would have been 26 when the

relationship began. (C.2). During the course of the

relationship, Parker and W.L.A. engaged in a number of

sexual acts including sexual intercourse and Parker

performing oral sex on W.L.A. (C.131-133, Supp. at 22).

The sexual acts occurred at Parker’s home, Parker’s

parents’ home, W.L.A.’s home, and at Pine Grove cemetery

located near W.L.A.’s home. (C.131-133, Supp. 220-23).

Parker subsequently engaged in a sexual relationship

with M.E., who was also a student at Pickens Academy.

1 http://pickensacademy.org

7
(C.10, 50-52, Supp. 19). This relationship lasted from

October 2014 to March 2016. (C.10, 50-52). M.E. was born

in July 1998 and would have been 16 year old when the

relationship began. (C.10). Parker and M.E. engaged in

sexual acts on a number of occasions which included sexual

intercourse and Parker performing oral sex on M.E. (C.10,

50-52). The sexual acts occurred at Parker’s home, M.E.’s

home, and at Graham Cemetery near M.E.’s home in Reform.

(C.10, 50-52).

Parker was arrested on March 29, 2016. (C.2). There is

no allegation that Parker engaged in any sexual acts with

either young man after that date. (C.50-52, C.131-133).

8
 STANDARD OF REVIEW

The present appeal involves only issues of law.

Therefore, the standard of review is de novo: “This Court

reviews pure questions of law in criminal cases de novo.”

Ex parte Key, 890 So.2d 1056, 1058 (Ala. 2003).

Further, this appeal includes a challenge to the

constitutionality of a statute, which requires a de novo

review: The standard of review for the constitutional

challenge to Ala. Code §13A-6-81 is de novo: “‘Our review

of constitutional challenges to legislative enactments is

de novo.’” 1568 Montgomery Highway, Inc. v. City of Hoover,

45 So.3d 319, 328 (Ala. 2010)(quoting Richards v. Izzi, 819

So.2d 25, 29 n. 3 (Ala. 2001).

9
 SUMMARY OF THE ARGUMENT

This is an appeal from Parker’s convictions based on

her pleas of guilty to two counts of a school employee

engaging in deviant sexual intercourse with a student under

the age of 19 years in violation of Ala. Code §13A-6-81.

First, the statute under which Parker was indicted was

not applicable to sexual activity between school employees

and students in private schools at the time of Parker’s

conduct. Ala. Code §13A-6-81 is one four statutes codified

from Act 2010-497. The last section of the Act provides

that the employment status of school employees charged

under the Act is governed by the Teacher Tenure Act, the

Teacher Accountability Act, or the Fair Dismissal Act, all

of which apply only to employees of public schools.

Further, in May 2016 the legislature amended the Act to

expressly make it applicable to sexual activity between

school employees and students enrolled in church schools

and private schools. Under well settled rules of

construction recognized in several Alabama cases, this

creates a presumption that the statue did not previously

apply with regard to students in church schools and private

schools.

10
 Because the statute under which Parker was indicted was

inapplicable to her conduct at the time of its commission,

the Trial Court was without jurisdiction to accept her

guilty pleas under Sanders v. State, 854 So.2d 143 (Ala.

Crim. App. 2002) and several other authorities.

Additionally, Ala. Code §13A-6-81 is unconstitutional

as applied to Parker. In Lawrence v. Texas, 539 U.S. 558

(2003), U.S. v. Windsor, 133 S.Ct. 2675 (2013), and

Obergefell v. Hodges, 135 S.Ct. 2584 (2015), the United

States Supreme Court recognized a substantive right to

private, consensual sexual intimacy protected by the Due

Process clause of the Fourteenth Amendment. While there

was initially some debate among the federal circuits as to

whether Lawrence had recognized any such liberty interest

which is entitled to heightened protection, a panel of the

Eleventh Circuit Court of Appeals has recently acknowledged

that Windsor and Obergefell have settled that question in

the affirmative.

Ala. Code §13A-6-81, as applied to Parker, infringes on

this right by criminalizing her private, consensual sexual

conduct with two young men who were of the age of consent

in Alabama. The statute cannot withstand either strict

11
scrutiny or intermediate scrutiny because it is not

narrowly tailored to a compelling state interest, nor is it

necessary to the furtherance of an important governmental

interest. Ala. Code §13A-6-81, as defined by former Ala.

Code §13A-6-80, broadly criminalized all sexual activity

between any person who happened to be a school employee and

any person under 19 who happened to be a student regardless

of whether the employee in question had any contact with

the student in any official capacity or used his or her

position to coerce the student into engaging in a sexual

act.2 This extremely broad criminal prohibition is not

narrowly tailored to a compelling state interest under

strict scrutiny, nor is it necessary to further any

conceivable important governmental interest under

intermediate scrutiny.

Even if the rational basis test is applied, the

statute’s sweeping criminal prohibition of all consensual

sexual activity between all school employees and all

students under 19 is not rationally related to any

conceivable legitimate state interest.

2 The statute was subsequently amended and no longer sweeps

so broadly. Parker’s challenge is to the former version of
the statute, and she offers no opinion as to whether the
current version of the statute is constitutional.

12
 Finally, Ala. Code §13A-6-81, as defined by former

§13A-6-80, violates the Equal Protection Clause of the

Fourteenth Amendment. The statute criminalizes private,

consensual sexual conduct between all school employees and

all students without regard to whether the employee even

has contact with the student in any official capacity.

Alabama law imposes no comparable criminal liability on

members of any other occupation for engaging in consensual

sexual conduct with 16, 17, and 18 year olds. School

employees alone are singled out for criminalization of

their private, consensual sexual conduct with individuals

who are of the age of consent based solely on their

occupation. The gross disparity in treatment between

school employees and the members of every other occupation

with regard to this protected liberty interest is not

rationally related to any legitimate state interest, much

less narrowly tailored to a compelling state interest.

For these reasons, Parker’s convictions based on her

guilty pleas are due to be set aside, and the charges

against her dismissed.

13
 ARGUMENT

Parker’s two convictions for the offense of school

employee engaging in deviate sexual intercourse with a

student under 19 are due to be reversed. The Trial Court

was without jurisdiction to accept her guilty pleas because

the statute under which she was indicted was not made

applicable to sexual activity between employees of private

schools and students enrolled in private schools until

after the date of Parker’s conduct.

Further, Ala. Code §13A-6-81, as applied in the present

case, unconstitutionally infringes on Parker’s substantive

right to private, consensual sexual intimacy under the Due

Process Clause of the Fourteenth Amendment to the United

States Constitution.

Finally, Ala. Code §13A-6-81, as defined by former Ala.

Code §13A-6-80, violates the Equal Protection Clause of the

Fourteenth Amendment because it criminalizes private,

consensual sexual conduct of school employees while

imposing no comparable criminal restrictions on members of

any other occupation.

14
I. THE TRIAL COURT WAS WITHOUT JURISDICTION TO ACCEPT
PARKER’S GUILTY PLEAS BECAUSE THE STATUTE UNDER WHICH
SHE WAS INDICTED WAS INAPPLICABLE TO HER CONDUCT AT
THE TIME OF ITS COMMISSION

The statute under which Parker was indicted was not

applicable to sexual activity between employees of private

schools and students enrolled in private schools at the

time of Parker’s conduct. Because the statute was

inapplicable to her conduct, and there was nothing unlawful

about her conduct at the time of its commission, the

indictments against her were illegal. Therefore, the Trial

Court was without jurisdiction to accept her guilty pleas,

and they are due to be set aside.

A. THE STATUTE UNDER WHICH PARKER WAS INDICTED WAS

INAPPLICABLE TO SEXUAL CONDUCT BETWEEN SCHOOL EMPLOYEES
AND STUDENTS IN PRIVATE SCHOOLS AT THE TIME OF PARKER’S
CONDUCT

Parker, who was an employee of Pickens Academy, was

indicted for engaging in sexual intercourse and deviate

sexual intercourse with two students who were enrolled at

Pickens Academy. (C.10, 48-52, 129-133, Supp. 19, 22).

However, the statute under which Parker was indicted did

not apply to sexual activity between school employees and

students in private schools or church schools at the time

15
of Parker’s conduct. Parker was indicted under Ala. Code

§13A-6-81(a) which, at that time, provided as follows:

(a) A person commits the crime of a school employee

engaging in a sex act or deviant sexual intercourse
with a student under the age of 19 years if he or she
is a school employee and engages in a sex act or
deviant sexual intercourse with a student, regardless
of whether the student is male or female. Consent is
not a defense to a charge under this section.

(b) As used in this section, “sex act” means sexual

intercourse with any penetration, however slight;
emission is not required.

(c) As used in this section, “deviant sexual

intercourse” means any act of sexual gratification
between persons not married to each other involving
the sex organs of one person and the mouth or anus of
another.

Ala. Code §13A-6-81 was originally enacted by the

legislature in 2010 as part of Act 2010-497. That Act was

codified into four statutes: Ala. Code §§13A-6-80, 13A-6-

81, 13A-6-82, and 13A-6-83. See Act 2010-497, included in

appendix.

Ala. Code §13A-6-80 provides the applicable definitions

for the Act. Ala. Code §13A-6-80, as it was originally

enacted in 2010, provided as follows,

“For purposes of this article, school employee

includes a teacher, school administrator, student
teacher, safety or resource officer, coach, and other
school employee.”

See Act 2010-497, p. 766, §4.

16
 Ala. Code §13A-6-83, which is section 3 of Act 2010-

497, goes on to provide that the employment status of

school employees charged under the Act would be governed by

the provisions of the Teacher Tenure Act, the Teacher

Accountability Act, or the Fair Dismissal Act:

“A school employee charged with the crime of engaging

in a sex act or deviant sexual intercourse with a
student or the crime of having sexual contact with a
student may be placed on paid administrative leave
while the charge is adjudicated. Upon the adjudication
of the charge, further disciplinary action may be
taken in accordance with the Teacher Tenure Act,
Chapter 24 of Title 16, the Teacher Accountability
Act, Chapter 24B of Title 16, or the Fair Dismissal
Act, Article 4 of Chapter 26 of Title 36, whichever is
applicable.”

The Teacher Tenure Act, the Teacher Accountability Act,

and the Fair Dismissal Act,3 by their express terms, are

applicable only to employees of public schools. Under the

Teacher Tenure Act, “teacher” is defined in former Ala.

Code §16–24–1 “to mean and include all persons regularly

certified by the teacher certificating authority of the

State of Alabama who may be employed as instructors,

principals or supervisors in the public elementary and high

schools of the State of Alabama.” (emphasis added). Under

3
The Teacher Tenure Act and the Fair Dismissal Act were
later repealed and replaced by the Students First Act of
2011, codified at Ala. Code §16-24C-1, et. seq.

17
the Fair Dismissal Act, “employee” is defined in former

Ala. Code §36–26–100 “to mean and include all persons

employed by county and city boards of education.” (emphasis

added). The Teacher Accountability Act applies to “persons

employed as principals in the public schools.” Ala. Code

§16-24B-3 (emphasis added).

Because Ala. Code §§13A-6-80, 13A-6-81, and 13A-6-83

were all part of one Act, they must be read together to

construe the application of any of the Act’s provisions:

“Sections of the Code originally constituting a single act

must be read in pari materia in order to ‘produce a

harmonious whole.’ 2 2A Sutherland Stat. Const. §46.05 (5th

ed.).” Ex parte Jackson, 625 So.2d 425, 428 (Ala. 1992).

The fact that section 3 of Act 2010-497 necessarily applies

only to employees of public schools demonstrates that the

Act, as originally enacted by the legislature in 2010, was

directed only at public school employees.

This interpretation of the Act is further bolstered by

subsequent amendments made by the legislature. During the

2016 legislative session, the legislature amended Ala. Code

§13A-6-80 to add the following language:

“(b) For purposes of this article, a student is

defined as any person under the age of 19 years

18
 enrolled or attending classes in a licensed or
accredited public, private, or church school that
offers instruction in grades K-12, regardless of
whether school is in session.”

(emphasis added).

The new changes became effective May 11, 2016 when the

bill was signed by the Governor. See Act 2016-354 in

appendix. Parker was indicted in March 2016 in case number

CC-16-123 for sexual acts with M.E. occurring from October

2014 through March 2016. (C.50-52). In case number CC-16-

177, Parker was indicted in June 2016 for sexual acts with

W.L.A. occurring in 2013 and 2014. (C.129-133).

There is no dispute that all of the conduct in question

occurred prior to May 11, 2016 when the legislature amended

the Act to extend it to sexual acts committed with students

enrolled in private schools. It is well settled that a

criminal defendant is subject to the version of a penal

statute as it existed at the time of the commission of the

alleged offense. See e.g. Bracewell v. State, 401 So.2d 123

(Ala. 1979)(“Absent a clear expression in the Statute to

the contrary, we think the law applicable at the time of

the offense was intended to govern the offense, the

offender, and all proceedings incident thereto, and we so

hold”); Stoner v. State, 418 So.2d 171 (Ala. Crim. App.

19
1982)(statue of limitations which existed at time of

offense governed); Williams v. State, 565 So.2d 282, 286

(Ala. Crim. App. 1990)(“[T]he statute in effect at the time

of the offense, is the applicable penal statute in this

case”).

Because the legislature adopted language in May, 2016

expressly making the Act applicable to sexual activity

between school employees and students in private schools,

this creates a presumption that the Act did not previously

apply to such conduct. It has long been settled law in

Alabama that when the legislature amends an unambiguous

statute, the presumption is that the legislature has

changed the law: “‘When the Legislature employs different

language in a subsequent statute in the same connection,

the courts will presume a change of the law is intended.’”

Louisville & N.R. Co. v. Western Union Telegraph Co., 71

So. 118, 123 (Ala. 1915)(quoting Lehman Durr Co. v.

Robinson, 59 Ala. 219, 240 (1877);

“It is well settled that when the legislature makes a

‘material change in the language of [an] original
act,’ it is ‘presumed to indicate a change in legal
rights.’ 1A Norman J. Singer, Statutes and Statutory
Construction §22:30 (6th ed. 2002)(footnote omitted).
In other words, the ‘amendment of an unambiguous
statute indicates an intention to change the law.’
Id.”

20
Pinigis v. Regions Bank, 977 So.2d 446, 452 (Ala.

2007)(emphasis added by Court in Pinigis).

See also Ivery v. State, 686 So.2d 495 (Ala. Crim. App.

1996)(where legislature changed requirement in insanity

statute from “criminality” to “wrongfulness”, presumption

is that “wrongfulness” means something other than

“criminality”); and W.B.B. v. H.M.S., 141 So.3d 1062 (Ala.

Civ. App. 2013)(different language in amended statute

relating to jurisdiction of juvenile courts was presumed to

change the law to limit such jurisdiction).

It is equally well settled that an ambiguous criminal

statute is to be construed in favor of the accused:

“Ambiguous criminal statutes must be strictly construed

against the State, and all doubts concerning the

interpretation of such statutes are to predominate in favor

of the accused.” Hankins v. State, 989 So.2d 610, 623 (Ala.

Crim. App. 2007);

“‘A basic rule of review in criminal cases is that

criminal statutes are to be strictly construed in
favor of those persons sought to be subjected to their
operation, i.e., defendants. … No person is to be
made subject to penal statutes by implication and all
doubts concerning their interpretation are to
predominate in favor of the accused.’”

21
Ex parte Bertram, 884 So.2d 889, 890 (Ala. 2003)(quoting

Clements v. State, 370 So.2d 723, 725 (Ala. 1979).

In Tennyson v. State, 101 So.3d 1256 (Ala. Crim. App.

2012), the defendant was convicted under former Ala. Code

§3A–6–110 for using a computer to solicit “a child who is

less than 16 years of age and at least three years younger

than the defendant” after he propositioned a law

enforcement officer who was posing as a fifteen year old

girl online. The defendant argued that the statute was

inapplicable since the person he solicited, as it turned

out, was not actually “a child.” The Court agreed.

The Court noted that after the date of the defendant’s

arrest, the statute was changed to expressly provide that

it applied even if it was merely “believed by the

defendant” that the person he or she was soliciting was a

child. The Court reasoned,

“[T]he fact that the legislature repealed §13A–6–110

and replaced it with a statute clearly providing for
situations in which the person solicited was not
actually a child suggests one of two possibilities.
Either §13A–6–110, as it existed, did not cover
Tennyson’s conduct or it was ambiguous. If the statute
was ambiguous, as the State appeared to concede during
oral argument, then we are required to construe the
statute in favor of the accused.”

Tennyson at 1261-1262.

22
 Likewise, in the present case, the fact that the

legislature amended the Act to add language expressly

making its provisions applicable to sexual conduct between

school employees and students in private schools “suggests

one of two possibilities.” Tennyson at 1262. Either the

statute as originally enacted was unambiguous, and we must

presume that the legislature’s addition of the language

regarding private schools was effectuating a change in the

law or, alternatively, the statute was originally ambiguous

as to whether it applied with regard to students in private

schools, and “we are required to construe the statute in

favor of the accused.” Id. To interpret the statute as

having application to sexual conduct between school

employees and students in private schools prior to the 2016

amendment, we would have to conclude that the legislature

unnecessarily added language in 2016 expressly including

such conduct within the statute’s ambit. “We cannot presume

that the legislature intended to do such a useless act.”

Hankins at 622; “It is presumed that the Legislature did

not do a vain and useless thing.” In re Opinion of the

Justices, 100 So.2d 681, 684 (Ala. 1958).

23
 All of the applicable rules of statutory construction

require a reading of former Ala. Code §§13A-6-80 and 13A-6-

81 as being inapplicable to sexual activity occurring

between school employees and students in private schools

prior to May 11, 2016. Because Parker’s conduct occurred

prior to that date, the statute under which she was

indicted did not apply to her conduct with two students

attending Pickens Academy.

B. THE INAPPLICABILITY OF THE STATUTE TO PARKER’S

CONDUCT AT THE TIME OF ITS COMMISSION PRESENTS A
JURISDICTIONAL QUESTION

Parker did not raise any issue with regard to the

applicability of the statute at the trial level or

specifically reserve this issue at the time she entered her

guilty pleas. Nor has she yet moved to withdraw her guilty

pleas, though she could certainly do so later in a Rule 32

proceeding. See e.g. Murray v. State, 922 So.2d 961, 965

(2005)(challenges to guilty plea “may be presented for the

first time in a timely filed Rule 32 petition”).4 However,

the question presented here concerns a jurisdictional

4
Parker would urge this Court to reach the merits of this
issue on appeal rather than requiring that this injustice
be corrected through a subsequent Rule 32 proceeding, which
would unnecessarily add one to two more years to the
process. Every day that Parker sits in Julia Tutwiler
prison is a day that her young son is without his mother.

24
defect which this Court can entertain for the first time on

appeal.

In Sanders v. State, 854 So.2d 143 (Ala. Crim. App.

2002), the defendant pleaded guilty to violating Ala. Code

§13A–11–72(a) which provides, “No person who has been

convicted in this state or elsewhere of committing or

attempting to commit a crime of violence shall own a pistol

or have one in his or her possession or under his or her

control.” The plea was entered in 1988. The defendant did

not challenge the conviction for several years. In 2002

the defendant filed a rule 32 petition alleging that “the

indictment returned against him was illegal” because the

statute was inapplicable to his conduct. He argued that

because he had been pardoned for the predicate offense,

there had been nothing unlawful about his possession of a

firearm under the authority of U.S. v. Fowler, 198 F.3d 808

(11th Cir. 1999). The trial court dismissed the petition

as time-barred. The Court of Criminal Appeal reversed,

finding that the defendant’s claim presented a

jurisdictional question which could be raised at any time:

“After reviewing Sanders’s argument and the caselaw he

cites in support of his petition, this Court cannot
affirm the denial of the petition on the basis that
Sanders’s petition is time-barred. Because Sanders’s

25
 claim is jurisdictional, see, e.g., Ex parte Casey,
852 So.2d 175 (Ala. 2002), it is not subject to the
two-year limitations period set forth in Rule 32.2(c),
Ala. R. Crim. P. Sanders cites United States v.
Fowler, 198 F.3d 808 (11th Cir. 1999), in support of
his contention that he could not be indicted for
violating the Alabama statute prohibiting possession
of a pistol by a person convicted of a crime of
violence.
…
Based on our review of Fowler and Sanders’s allegation
set out in his Rule 32 petition, this Court must
remand this cause for an evidentiary hearing.”

Sanders at 144-145 (emphasis added).

Similarly, in F.C. v. State, 742 So.2d 200 (Ala. Crim.

App. 1999), the Court found that the defendant presented a

jurisdictional question with regard to his plea of guilty

to possession of a forged instrument when he argued that

the statute did not apply to his conduct, which was

possession of counterfeit money: “Although F.C. did not

reserve this issue before pleading guilty, the issue is

nonetheless preserved for appellate review because the

issue is jurisdictional in nature.” F.C. at 201.

See also Ex parte Jarrett, 89 So.3d 730 (Ala.

2011)(defendant’s argument that he was sentenced for a

felony when his conduct had only been a misdemeanor at the

time of its commission presented a jurisdictional

question); and Petty v. State, 414 So.2d 182, 183 (Ala.

26
Crim. App. 1982)(trial court was without jurisdiction to

accept guilty plea for attempted robbery when that was not

an existing criminal offense at the time of its

commission).

In the present case, Parker, who was an employee of a

private Christian school who engaged in sexual activity

with students enrolled in a private school and who were of

the age of consent “could not be indicted for violating the

Alabama statute.” Sanders at 145. As was true in Sanders,

the statute under which Parker was indicted had no

application to her conduct. At the time of Parker’s

conduct, there was absolutely nothing unlawful about her

consensual sexual relationships with two young men who were

of the age of consent and who were not enrolled in public

school. As was true in the above cited authorities, this

presents a jurisdictional issue.

Parker would contend that the Record contains all of

the facts necessary to determine that the conduct occurred

prior to May 11, 2016 when the Act was amended to make it

applicable to sexual conduct between school employees and

students in private schools. However, if there are any

facts relevant to this jurisdictional inquiry that this

27
Court feels are not established by the Record, this Court

should remand the case to the Trial Court for an

evidentiary hearing pursuant to Sanders, and the other

authorities discussed above.

II. ALA. CODE §13A-6-81, AS APPLIED TO PARKER, VIOLATES THE

DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

Even if Ala. Code §13A-6-81 did apply to school

employees engaging in sexual activity with students in

private schools at the time of Parker’s conduct, the

version of the statute which existed at that time is

unconstitutional as applied to Parker.5 The statute

infringes upon Parker’s substantive right to private,

consensual sexual intimacy under the Due Process Clause of

the Fourteenth Amendment as recognized by Lawrence v.

Texas, 539 U.S. 558 (2003), U.S. v. Windsor, 133 S.Ct. 2675

(2013), and Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

Parker would contend that under Lawrence, Windsor, and

Obergefell, §13A-6-81 is subject to heightened scrutiny to

determine its constitutionality. The statute cannot

5 As will be discussed below, when the legislature amended

the Act in 2016, it added language which narrowed the scope
of §13A-6-81 in an apparent effort to correct an
overbreadth problem. Parker’s challenge is to the
constitutionality of the former version of the statute, as
applied to her, and offers no opinion as to the
constitutionality of the current version of the statute.

28
survive this stringent level of scrutiny. However, even if

§13A-6-81 is subject to the rational basis test, the

statute still fails because it is not rationally related to

a legitimate state interest.

A. THE UNITED STATES SUPREME COURT HAS RECOGNIZED A

CONSTITUTIONAL RIGHT TO PRIVATE, CONSENSUAL SEXUAL
INTIMACY

There can be no real question at this point that the

United States Supreme Court has recognized a substantive

right to private, consensual sexual intimacy which is

protected by the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. The

Fourteenth Amendment provides,

“No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, §1

In Lawrence v. Texas, 539 U.S. 558 (2003), the United

States Supreme Court struck down a Texas statute which

outlawed “deviant sexual intercourse” between consenting

adults. The Court noted that the issue before it was

“whether the petitioners were free as adults to engage in

the private conduct in the exercise of their liberty under

29
the Due Process Clause of the Fourteenth Amendment to the

Constitution.” Lawrence at 563. The Court began its

discussion of the liberty interest at stake by noting,

“There are broad statements of the substantive reach

of liberty under the Due Process Clause in earlier
cases, including Pierce v. Society of Sisters, 268
U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and
Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67
L.Ed. 1042 (1923); but the most pertinent beginning
point is our decision in Griswold v. Connecticut, 381
U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).”

Id.

In recognizing that the conduct in question had

historically been considered morally objectionable, the

Court countered, “‘Our obligation is to define the liberty

of all, not to mandate our own moral code.’” Id. at 571

(quoting Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833, 850 (1992)). The Court pointed out, “In all

events we think that our laws and traditions in the past

half century are of most relevance here. These references

show an emerging awareness that liberty gives substantial

protection to adult persons in deciding how to conduct

their private lives in matters pertaining to sex.” Id. at

571-572 (emphasis added).

The Court concluded,

30
 “The petitioners are entitled to respect for their
private lives. The State cannot demean their existence
or control their destiny by making their private
sexual conduct a crime. Their right to liberty under
the Due Process Clause gives them the full right to
engage in their conduct without intervention of the
government. ‘It is a promise of the Constitution that
there is a realm of personal liberty which the
government may not enter.’ Casey,6 supra, at 847, 112
S.Ct. 2791. The Texas statute furthers no legitimate
state interest which can justify its intrusion into
the personal and private life of the individual.”

Id. at 578 (emphasis added).

The Supreme Court reiterated the right which it had

recognized in Lawrence in two subsequent decisions. In

U.S. v. Windsor, 133 S.Ct. 2675 (2013), the Court found

that the Defense of Marriage Act’s definition of marriage

as “a legal union between one man and one woman as husband

and wife” was unconstitutional. The Court found that the

provision infringed on the right to “[p]rivate, consensual

sexual intimacy” – a right which the Court indicated it had

recognized in Lawrence. Windsor at 2692. The Court found

that even though the Act did not criminalize any conduct,

it was still unconstitutional because it demeaned same-sex

couples, “whose moral and sexual choices the Constitution

protects.” Id. at 2694 (emphasis added).

6
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.
833 (1992)

31
 Similarly, in Obergefell v. Hodges, 135 S.Ct. 2584

(2015), the Court found that it was unconstitutional for

states to deny same sex couples the right to marry. As

part of its analysis, the Court noted that “Lawrence

confirmed a dimension of freedom that allows individuals to

engage in intimate association without criminal

liability….” Obergefell at 2600 (emphasis added). The

Court also recognized a modified Glucksberg analysis to

define privacy-based rights. The Court acknowledged that

generally under Washington v. Glucksberg, 521 U.S. 702

(1997), “[L]iberty under the Due Process Clause must be

defined in a most circumscribed manner, with central

reference to specific historical practices.” Obergefell at

2602. However, the Court rejected that application of

Glucksburg in the case before it, noting that it was not

appropriate in the context of analyzing privacy based

rights: “[T]hat approach … is inconsistent with the

approach this Court has used in discussing other

fundamental rights, including marriage and intimacy.” Id.

Prior to the Supreme Court’s decisions in Windsor and

Obergefell, there was disagreement among the federal

circuits as to whether Lawrence had, in fact, recognized a

32
constitutional right to sexual privacy. In Reliable

Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008),

the Fifth Circuit concluded that the Court in Lawrence did

recognize a “substantive due process right to engage in

private intimate conduct of his or her choosing.” Reliable

Consultants at 743. The Fifth Circuit reasoned,

“The right the Court recognized was not simply a right

to engage in the sexual act itself, but instead a
right to be free from governmental intrusion regarding
‘the most private human contact, sexual behavior.’
That Lawrence recognized this as a constitutional
right is the only way to make sense of the fact that
the Court explicitly chose to answer the following
question in the affirmative: ‘We granted certiorari …
[to resolve whether] petitioners’ criminal convictions
for adult consensual sexual intimacy in the home
violate their vital interests in liberty and privacy
protected by the Due Process Clause of the Fourteenth
Amendment.’”

Reliable Consultants at 743 (quoting Lawrence at

564)(emphasis added in Reliable Consultants).

See also Latta v. Otter, 771 F.3d 456, 466 (9th Cir.

2014)(describing Lawrence as “recognizing a due process

right to engage in intimate conduct”).

The Eleventh Circuit initially interpreted Lawrence

very differently than the Fifth Circuit and the Ninth

Circuit. In Williams v. Attorney General (Williams IV),

378 F.3d 1232 (11th Cir. 2004), which addressed the

33
constitutionality of a statute banning the sale of sexual

devices, the Court concluded,

“In short, we decline to extrapolate from Lawrence and

its dicta a right to sexual privacy triggering strict
scrutiny. To do so would be to impose a fundamental-
rights interpretation on a decision that rested on
rational-basis grounds, that never engaged in
Glucksberg analysis, and that never invoked strict
scrutiny. Moreover, it would be answering questions
that the Lawrence Court appears to have left for
another day. Of course, the Court may in due course
expand Lawrence’s precedent in the direction
anticipated by the dissent. But for us preemptively to
take that step would exceed our mandate as a lower
court.”

Williams IV at 1238.

However, a panel of the Eleventh Circuit has recently

recognized that the United States Supreme Court’s

subsequent decisions in Windsor and Obergefell have, in

fact, expanded Lawrence’s precedent in a way that has

called into question its decision in Williams IV. In

Flanigan’s Enterprises, Inc. of Georgia, et al v. City of

Sandy Springs, Georgia, 831 F.3d 1342 (11th Cir. 2016)

vacated and reh’g en banc granted, 864 F.3d 1258, the Court

noted that the Supreme Court’s subsequent decisions in

Windsor and Obergefell supported an argument that Lawrence

did announce a constitutional right to engage in acts of

private, consensual sexual intimacy. The Eleventh Circuit

34
noted that in Windsor, the Court alluded to a right to

“[p]rivate, consensual sexual intimacy” – a right which the

Court indicated it had recognized in Lawrence. Flanigan’s

Enterprises at 1347 (quoting Windsor at 2692). The

Eleventh Circuit also noted,

“In Obergefell, the Court explained that a refined

Glucksberg analysis applies to define privacy-based
rights because Glucksberg’s requirement that rights
‘be defined in a most circumscribed manner’ was
appropriate for the context in which that test arose
but was ‘inconsistent with the approach th[e] Court
ha[d] used in discussing other fundamental rights,
including marriage and intimacy.’”

Flanigan’s Enterprises at 1347-1348 (quoting Obergefell at

2602).

The Eleventh Circuit concluded, “[W]e are persuaded

that Windsor and Obergefell cast serious doubt on Williams

IV.” Id. at 1348. However, the Court determined that it

could not overrule Williams IV without an en banc hearing.

The Court concluded that until Williams IV is overruled en

banc, “[W]e are obligated to follow it ‘even though

convinced it is wrong.’” Flanigan’s Enterprises at 1348

(quoting United States v. Steele, 147 F.3d 1316, 1318 (11th

Cir. 1998)(emphasis added). The Court concluded by

encouraging the Appellants to petition for an en banc

hearing so that Williams IV could be overruled: “The

35
Appellants are free to petition the court to reconsider our

decision en banc, and we encourage them to do so.” Id. The

Appellants did petition for a rehearing en banc, which was

granted in Flanigan’s Enterprises, Inc. of Georgia, et al

v. City of Sandy Springs, Georgia, 864 F.3d 1258 (11th Cir.

March 14, 2017). The panel’s decision was vacated, and we

await the decision of the full Court, which has not yet

been rendered. There is every possibility that decision

will be reached during this pendency of the present appeal.

This Court should recognize, as other jurisdictions

have recognized and the Eleventh Circuit seems prepared to

now recognize, that after Windsor and Obergefell, there

remains no real question that individuals have a

substantive right to private, consensual sexual intimacy

which is protected by the Due Process Clause.

B. ALA. CODE §13A-6-81 INFRINGES ON PARKER’S RIGHT TO

PRIVATE, CONSENSUAL SEXUAL INTIMACY

Ala. Code §13A-6-81, as applied in the present case,

criminalizes private, consensual sexual conduct between

individuals who are of the age of consent. This violates

Parker’s right to private, consensual sexual intimacy under

the Due Process Clause of the Fourteenth Amendment.

36
 The present case involves private consensual sexual

intimacy occurring between Parker and two young men who

were 16 and 17 at the time of the conduct in question and,

thus, were old enough to consent to sexual acts under

Alabama law. Ala. Code §13A-6-70 provides, in pertinent

part,

“(a) Whether or not specifically stated, it is an

element of every offense defined in this article, with
the exception of subdivision (a)(3) of Section 13A-6-
65, that the sexual act was committed without consent
of the victim.
…

(c) A person is deemed incapable of consent if he is:

(1) Less than 16 years old”

In Parks v. State, 565 So.2d 1265, 1273 (Ala. Crim.

App. 1990), the Court noted, “[U]nder Alabama law, a female7

16 years of age is technically not a ‘child,’ but is one

capable of consenting to sexual intercourse.” (emphasis

added).

In United States v. Johnston, 75 M.J. 563 (N.M. Ct.

Crim. App. 2016), the Court determined that consensual

sexual communications between a service member and a young

7 The statute itself does not distinguish between males and

females.

37
woman he believed was 17 years old8 were exchanges between

“consenting adults” entitled to the due process protections

announced in Lawrence. In Johnston, the service member was

convicted for indecent exposure after he engaged in

sexually charged communications through text messaging with

a minor, including sending her pictures of his genitals.

It was undisputed that he believed the minor was 17, which

was over the age of consent. On appeal, the Court found

that the electronic exchanges had occurred between two

“consenting adults” and, therefore, were not “indecent”

within the meaning of the statute. The Court reasoned,

“Just as the absence of consent, adulthood, or privacy may

render sexual conduct indecent, the presence of those three

factors can shield the same conduct from criminal

liability.” Johnston at 568 (emphasis added). The Court

pointed out that in Lawrence, “the Court invalidated the

Texas statute, finding a liberty right under the Due

Process Clause for consenting adults to engage in private

sexual conduct without intervention of the government.” Id.

at 569. The Court reasoned, “Interpretations of what makes

8 It turned out the girl was actually only 14, though there
seemed to be no dispute that for purposes of the particular
offense in question, it was only relevant what age he
believed the girl was.

38
conduct indecent, and therefore criminal, must account for

the liberty interests of consenting adults acting in

private.” Id. The Court noted, “The messages also depict

[the minor] as a willing and active participant in graphic

sexual fantasies shared via text, or ‘sexting.’ She

invited, encouraged, and reciprocated the appellant’s

verbalizations of oral sex and sexual intercourse with her,

often pressing him for details.” Id. The Court concluded

that the case had “all three of the factors comprising the

liberty interest identified in Lawrence. Consent, age (or a

reasonable mistake of fact as to age), and privacy.” Id. at

570.

Just as the communications in Johnston between the

service member and a person he believed to be 17 years old

were exchanges between “consenting adults” for purposes of

Lawrence, the conduct in the present case, which occurred

privately between Parker and two young men who were of the

age of the consent was sexual intimacy between consenting

adults which includes “all three of the factors comprising

the liberty interest identified in Lawrence.” Johnston at

570.

39
 There has never been any suggestion that the sexual

conduct which occurred between Parker and the two young men

in question was anything other than entirely consensual.

Parker was never charged with the violation of any code

section that has forcible compulsion as an element.

Further, Parker’s relationship with W.L.A. spanned from

2012 to 2014 with the two of them engaging in numerous

sexual acts during that time including sexual intercourse

and Parker performing oral sex on W.L.A. (C.131-133, Supp.

21-22). Similarly, Parker’s relationship with M.E. spanned

from 2014 to 2016 with the two of them engaging in numerous

sexual acts during that time including sexual intercourse

and Parker performing oral sex on M.E. (C.10, 50-52). It

is impossible to imagine how Parker, who is only 5’4, could

have forced two able bodied young men to allow her to

perform oral sex on them and engage in sexual intercourse

against their will over such a lengthy period of time on so

many occasions. (C.2). Both young men were interviewed by

law enforcement and neither suggested that the relationship

was anything other than consensual. (C.10, Supp. 20, 22).

The sexual acts between Parker and these young men

occurred in a variety of places including Parker’s home,

40
the young men’s homes, and a nearby public cemetery. (C.10,

50-52, 131-133, Supp. 220-23). All of these consensual

sexual acts were conducted in private, even though some

occurred in a cemetery that is open to the public: “But

what he seeks to preserve as private, even in an area

accessible to the public, may be constitutionally

protected.” Katz v. U.S., 389 U.S. 347 (1967). Neither

young man ever complained to anyone about the sexual

relationship, and they admitted to the private, consensual

conduct between themselves and Parker only when they were

confronted by law enforcement officers who questioned them.

(C.10, Supp. 20, 22). W.L.A. was actually away at college

when law enforcement officials tracked him down to question

him about his relationship with Parker which had occurred

two to three years earlier while he had been a student at

Pickens Academy. (Supp. 22).

For all these reasons, the conduct in this case falls

squarely within the substantive right to private,

consensual sexual intimacy recognized in Lawrence, Windsor,

and Obergefell, and Ala. Code §13A-6-81 infringes on that

right as applied to Parker in this case.

41
 C. ALA. CODE §13A-6-81, AS APPLIED IN THIS CASE, CANNOT
SURVIVE HEIGHTENED SCRUTINY

There has been disagreement among jurisdictions as to

what level of scrutiny is appropriate to apply to a statute

infringing on a person’s right to private, consensual

intimacy under Lawrence. However, the better reasoned

authorities agree that some level of heightened scrutiny is

applicable.

In Witt v. Department of Air Force, 527 F.3d 806 (9th

Cir. 2008), the Ninth Circuit concluded that statutes that

infringe on the right to sexual privacy recognized in

Lawrence are subject to intermediate, heightened scrutiny.

In rejecting the government’s argument that certain

language in Lawrence indicated that the Court was applying

the rational basis test, the Court reasoned, “We cannot

reconcile what the Supreme Court did in Lawrence with the

minimal protections afforded by traditional rational basis

review.” Witt at 816. The Court set out a number of

reasons for concluding that the Court in Lawrence did not

utilize a rational basis review. First, the Ninth Circuit

noted that the Court in Lawrence considered “‘the extent of

the liberty at stake’” which is “inconsistent with rational

basis review.” Id. at 817 (quoting Lawrence at 567).

42
 Second, the Ninth Circuit noted that “the cases on

which the Supreme Court explicitly based its decision in

Lawrence are based on heightened scrutiny.” Id. Third, the

Court pointed out that in Lawrence, the Court had declared,

“‘The Texas statute furthers no legitimate state interest

which can justify its intrusion into the personal and

private life of the individual.’” Id. (quoting Lawrence at

578 (emphasis added by Court in Witt). The Court reasoned,

“Were the Court applying rational basis review, it would

not identify a legitimate state interest to ‘justify’ the

particular intrusion of liberty at issue in Lawrence;

regardless of the liberty involved, any hypothetical

rationale for the law would do.” Id.

After concluding that “Lawrence applied something more

than traditional rational basis review,” the Ninth Circuit

then turned to what level of heightened scrutiny would be

appropriate. Id. The Court rejected the argument that

strict scrutiny was the appropriate level of scrutiny, and

it ultimately decided that a modified version of the

intermediate level of scrutiny established by the Court in

Sell v. United States, 539 U.S. 166 (2003) was appropriate.

The Ninth Circuit concluded that where the government

43
infringes on rights recognized by Lawrence, “[T]he

government must advance an important governmental interest,

the intrusion must significantly further that interest, and

the intrusion must be necessary to further that interest.”

Id. at 819.

The Arkansas Supreme Court agreed that statutes that

infringe on the right to sexual privacy are subject to

heightened scrutiny under Lawrence, but it found that

strict scrutiny is the applicable standard. In Paschal v.

State, 388 S.W.3d 429 (Ark. 2012), a teacher was convicted

under a statute which made it a felony for “a teacher in a

public school in a grade kindergarten through twelve” to

engage in sexual contact “with another person who is [a]

student enrolled in the public school and [l]ess than

twenty-one (21) years of age.” The student in question was

eighteen years old. The defendant argued that the statute

infringed on his right to engage in a consensual adult

sexual relationship under Lawrence. The Court agreed. The

Court first rejected the state’s attempt to define the

right in question narrowly:

“The State misapprehends the issue when it asserts

that there is no fundamental right for a public high
school teacher to have sex with an eighteen-year-old
high school student enrolled in that school. The issue

44
 is whether the statute, as applied in this case,
infringes on Paschal’s fundamental right to engage in
private, consensual, noncommercial acts of sexual
intimacy with an adult. We hold that it does.”

Paschal at 435.

The Court found that because the statute infringed on a

fundamental right, it was subject to strict scrutiny:

“As applied in this case, section 5–14–125(a)(6)

criminalizes consensual sexual conduct between adults
and, therefore, we conclude that the statute infringes
on Paschal’s fundamental right to privacy. A statute
that infringes on a fundamental right is subject to
strict-scrutiny review, and the statute cannot survive
unless ‘a compelling state interest is advanced by the
statute and the statute is the least restrictive
method available to carry out [the] state interest.’”

Id. at 436 (quoting Jegley v. Picado, 80 S.W.3d 332, 350

(Ark. 2002) quoting in turn Thompson v. Ark. Social Servs.,

669 S.W.2d 878, 880 (Ark. 1984)).”

The Court assumed, without finding, that the state had

a compelling state interest because the Arkansas state

constitution provided that the state had a duty to provide

a public education for children aged six through twenty-

one, and the statute was enacted in furtherance of the

state’s interest in providing a “‘general, suitable and

efficient’ public school system’” as required by the state

constitution. Id. at 436. However, the Court found that

the statute, which “criminalizes adult consensual sex, is

45
not the least restrictive method available to carry out the

State’s interest.” Id. at 437. The Court noted that there

was another statute which prohibits a person in a position

of trust or authority over a victim from using the position

of trust or authority to engage in sexual intercourse or

deviate activity. The Court concluded, “Section 5–14–

125(a)(6), as applied in this case, infringes on a

fundamental right and is not the least restrictive method

available for the promotion of a state interest; therefore,

it is unconstitutional.” Id.

In the present case, Ala. Code §13A-6-81, as applied in

this case, is unconstitutional under either strict scrutiny

or the heightened, intermediate level of scrutiny used in

Witt.9 Alabama courts have noted that although statutes are

generally presumed to be constitutional, the opposite rule

applies where the statute in question infringes upon a

fundamental right:

“‘If the challenged government action [infringes upon]

a fundamental right, … a court will review that

9
As noted above in Witt, the test adopted by the Ninth
Circuit for determining the constitutionality of statutes
infringing on the right to private, consensual sexual
intimacy is that “the government must advance an important
governmental interest, the intrusion must significantly
further that interest, and the intrusion must be necessary
to further that interest.”

46
 challenged action applying strict scrutiny.” Price–
Cornelison v. Brooks, 524 F.3d 1103, 1109 (10th Cir.
2008)(citations omitted). Under the strict-scrutiny
analysis, a statute that infringes upon a fundamental
right is presumed to be unconstitutional, and the
State bears the burden “to prove that the
[infringement] ‘furthers a compelling interest and is
narrowly tailored to achieve that interest.’” Citizens
United v. Federal Election Comm’n, 558 U.S. 310, ––––,
130 S.Ct. 876, 898, 175 L.Ed.2d 753 (2010)(quoting
Federal Election Comm’n v. Wisconsin Right to Life,
Inc., 551 U.S. 449, 464, 127 S.Ct. 2652, 168 L.Ed.2d
329 (2007)).”

Herring v. State, 100 So.3d 616, 620 (Ala. Crim. App.

2011)(emphasis added).

In the present case, the State has not articulated its

purpose in enacting §13A-6-81. In Paschal, the Court found

there was arguably a compelling state interest for the

Arkansas statute because the state had a duty under its

state’s constitution to provide a “general, suitable and

efficient’ public school system.” The Alabama Constitution

originally contained a similar duty in Ala. Const. Art.

XIV, Section 256. However, that provision was removed in

1956 by Amendment 111 which expressly provides that

“nothing in this Constitution shall be construed as

creating or recognizing any right to education or training

at public expense ….” Further, the present case involves an

employee of a private school and two students who were

47
enrolled in private school. Accordingly, whatever interest

the State may or may not have in providing a public school

system in Alabama is not implicated in this case.

It might also be argued that the state has a

compelling, or at least important, governmental interest in

protecting people from sexual exploitation by those in

positions of authority over them. However, Ala. Code

§13A-6-81, as it was defined by former Ala. Code §13A-6-80

at the time of Parker’s conduct, broadly criminalized any

sexual acts between someone who happened to be employed by

a school and another person who happened to be “a student.”

At that time the statute required no showing that the

school employee in question had any position of authority

over the student in question or even had contact with the

student in any official capacity. Conversely, the statute

failed to proscribe consensual sexual activity between

students and school volunteers who, in fact, exercised

authority over the student.10 Nor does Alabama law

criminalize consensual sexual conduct between people such

as youth pastors, scout masters, and coaches not employed

The legislature later amended §13A-6-80 to extend the

10

application of the statute to an “adult volunteer in a

position of authority.”

48
by a school and the young people under their authority as

long as they are of the age of consent.

Alabama law makes it a crime to engage in sexual

conduct with anyone without their consent, when they lack

the capacity to consent, or when their consent is gained by

the use of any fraud or artifice.11 Therefore, it is

difficult to argue that §13A-6-81, which criminalized all

sexual acts between any school employee and any student

without any showing that the student’s ability to consent

was in anyway compromised, while failing to similarly

criminalize consensual sexual activity between others who

are in a position of authority with the young men and women

in their charge, is narrowly tailored to, or is even in

furtherance of any conceivable state interest.

The Alabama legislature seemingly acknowledged that

Ala. Code §13A-6-81, as it was defined by former §13A-6-80,

was far too broad to be constitutionally sound when it

significantly narrowed the scope of the statute in 2016.

In 2016, the legislature amended §13A-6-80 to limit the

application of §13A-6-81(a) to situations in which a school

employee “has contact with a student in his or her official

See Ala. Code §§13A-6-61, 13A-6-61, 13A-6-63, 13A-6-64,

11

13A-6-65, 13A-6-66, 13A-6-67, and 13A-6-70

49
capacity as a school employee.” However, the statute which

was applicable at the time of Parker’s conduct included no

such limitation. Accordingly, Parker could be convicted

under the version of the statute which applied to her

without any showing that either of the young men in

question were her students at the time of the sexual acts

or that she had any contact with them in her official

capacity at that time.

The sexual acts in this case were not alleged to have

occurred on school premises nor was there an allegation

that Parker had authority over either young man during the

time she was involved in a sexual relationship with them.

The version of §13A-6-80 and §13A-6-81 that existed at the

time of Parker’s conduct essentially created an

irrebuttable presumption that all school employees hold a

position of authority over all students sufficiently

powerful to overcome the student’s capacity to consent to

sexual conduct. “Statutes creating permanent irrebuttable

presumptions have long been disfavored under the Due

Process Clauses of the Fifth and Fourteenth Amendments.”

Vlandis v. Kline, 412 U.S. 441, 446 (1973).

50
 For these reasons §13A-6-81, as defined by former §13A-

6-80, which broadly criminalized all sexual acts between

any school employee and any student, is not narrowly

tailored toward any compelling state interest, nor is it

necessary to further an important governmental interest.

Accordingly, it is unconstitutional as applied to Parker.

D. ALA. CODE §13A-6-81, AS APPLIED IN THIS CASE, IS

UNCONSTITUTIONAL UNDER THE RATIONAL BASIS TEST

As noted above, after Lawrence, there was disagreement

among jurisdictions as to whether statutes infringing upon

sexual privacy are subject to heightened scrutiny or the

rational basis test. As discussed supra, the Eleventh

Circuit Court of Appeals was among those Courts who

initially denied that Lawrence had recognized such a right

and concluded, accordingly, that the rational basis test

should be used to review statutes which are alleged to

infringe on sexual privacy.

In 1568 Montgomery Highway, Inc. v. City of Hoover, 45

So.3d 319 (Ala. 2010), the Alabama Supreme Court examined

the constitutionality of a statute banning the sale of

sexual devices. In deciding the appropriate level of

scrutiny to apply, the Court recognized the split in the

circuits that existed at that time. The Court examined the

51
Fifth Circuit’s opinion in Reliable Consultants, discussed

supra, and the Eleventh Circuit’s opinion in Williams IV.

The Court acknowledged, “It is clear from the discussions

in Williams VI and Reliable Consultants that the debate

about the scope of Lawrence v. Texas remains open.” 1568

Montgomery Highway at 340. The Court ultimately concluded,

“It is the Eleventh Circuit’s view of Lawrence that we

embrace.” Id. The Court then found that the statute in

question was rationally related to the state’s legitimate

state interest in promoting “public morality.” Id. 341.

1568 Montgomery Highway is not controlling in the

present case for two reasons. First, the Court’s decision

was expressly based on the Eleventh Circuit’s decision in

Williams IV. As discussed above, a panel of the Eleventh

Circuit has now acknowledged that it is “convinced

[Williams IV] is wrong” in light of the United States

Supreme Court’s subsequent opinions in Windsor and

Obergefell. Flanigan’s Enterprises at 1348. The Alabama

appellate courts are bound to follow decisions of the

United States Supreme Court when there is a conflict

between a decision of the Alabama Supreme Court and a

decision of the United States Supreme Court. See e.g.

52
Little v. Consolidated Pub. Co., 83 So.3d 517 (Ala. Civ.

App. 2011) where the Court concluded,

“Because our supreme court’s holding in [WKRG–TV v.

Wiley, 495 So.2d 617 (Ala. 1986)] conflicts with the
constitutional protections the First Amendment affords
in circumstances such as those in the instant case, as
those protections have been articulated by the United
States Supreme Court’s holding in [Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)], this
court is bound to follow the opinion of the United
States Supreme Court.”

Because the Alabama Supreme Court’s decision in 1568

Montgomery Highway was based on the Eleventh Circuit’s

decision in Williams IV, which the Eleventh Circuit has now

acknowledged “is wrong” in light of the United States

Supreme Court’s decisions in Windsor and Obergefell, this

Court is not bound by 1568 Montgomery Highway to the extent

it conflicts with those US Supreme Court decisions.

Further, the Court in 1568 Montgomery Highway noted

that the statue in question in that case “involves public

commercial activity, not the regulation of private sexual

conduct.” Id. at 341 (emphasis added). In the present

case, Ala. Code §13A-6-81, as applied to Parker,

necessarily involves “the regulation of private sexual

conduct.” For these reasons, 1568 Montgomery Highway is

not controlling.

53
 There are jurisdictions which have upheld statutes

prohibiting sexual acts between school employees and

students using the rational basis review. For example, in

State v. Clinkenbeard, 123 P.3d 872 (Wash. App. 2005), the

defendant was convicted for violating a statute which made

it an offense for any public school employee to have sexual

intercourse with a registered student of that school who is

at least 16 years old if there is an age difference of five

years or more between the employee and the student. The

defendant was a 62 year old school bus driver who was

involved in a sexual relationship with an 18 year old

student who had been riding his school bus for several

years. The evidence showed that while the two did not

begin having sex until the student was 18, the romantic

aspect of the relationship began the student was only 12.

The court first found that the rational basis test was

the proper level of scrutiny to apply to the statute:

“Because Lawrence v. Texas does not establish a fundamental

right to all consensual adult sexual conduct, we apply a

rational basis review to Mr. Clinkenbeard’s as-applied due

process and equal protection claims.” Clinkenbeard at 563.

The Court noted that under the rational basis test, “The

54
defendant challenging the constitutionality of a statute

must show that the law is so unrelated to the achievement

of a legitimate purpose that the law is arbitrary or

obsolete.” Id. at 564. In examining the existence of a

legitimate state interest, the Court noted that under

Washington’s state constitution, “The state is

constitutionally obligated to provide an education to its

children.” Id. at 565. The Court reasoned, “As part of

that duty, the state has a legitimate interest in providing

a safe school environment” which includes preventing the

exploitation of students. Id. The Court concluded,

“Because this statute is not wholly irrelevant to the goal

of preventing the exploitation of students, and therefore

is not arbitrary, RCW 9A.44.093(1)(b) did not violate Mr.

Clinkenbeard’s right to substantive due process in this

case.” Id.

It is important to note that State v. Clinkenbeard was

decided prior to the Supreme Court’s decisions in Windsor

and Obergefell which, as a panel of the Eleventh Circuit

noted in Flanigan’s Enterprises, have called into question

decisions from jurisdictions which had previously concluded

that the rational basis test was applicable to statutes

55
infringing on private, consensual sexual conduct under

Lawrence.

Additionally, the Court in Clinkenbeard specifically

noted that the statute in question was directed at “public

school employees.” State v. Clinkenbeard at 567. The Court

noted that because the state had a duty under its state

constitution to provide a public education to its children,

which included a duty to provide “a safe school

environment,” the statute was rationally related to a

legitimate state interest. Id. at 565.

As noted above, there is no similar duty imposed by the

Alabama Constitution. Further, Parker was not a public

school employee, and the young men she was involved with

were not enrolled in public school. Therefore, whatever

interest the state might or might not have in providing a

system of public education is not implicated in this case.

Additionally, the statute in State v. Clinkenbeard was

tailored toward conduct between public school employees and

students attending the same school where there was a

significant age difference between the employee and the

student. The statute in the present case, prior to 2016,

broadly criminalized all sexual acts between anyone who

56
happened to be a school employee and anyone who happened to

be a student without respect to any other factors, while

permitting the same conduct between students and those who

are not school employees, including adult volunteers at the

school who exercised authority over students.

The reasoning of State v. Mole, 994 N.E.2d 482 (Ohio

Ct. App. 2013) is applicable to the present case. In State

v. Mole, a police officer was convicted under a statute

which made it a crime to “engage in sexual conduct with

another, not the spouse of the offender when … the other

person is a minor, the offender is a peace officer, and the

offender is more than two years older than the other

person.” The police officer’s conduct consisted of

engaging in a sexually charged online chat with a girl who

represented that she was 18, but who was actually 14. The

police officer contended that the statute was

unconstitutional as applied to him. The Court first noted

that the defendant had not argued that any fundamental

right was involved. Therefore the rational basis test would

apply:

“The parties do not dispute that this case does not

involve a fundamental right or suspect classification;
thus, a rational-basis review applies.

57
 ‘The rational-basis test involves a two-step
analysis. We must first identify a valid state
interest. Second, we must determine whether the method
or means by which the state has chosen to advance that
interest is rational.’”

State v. Mole at 484 (quoting McCrone v. Bank One Corp.,

839 N.E.2d 1, 5 (Ohio 1990).

The Court conceded,

“Because a police officer may be held to a higher

standard of conduct than an ordinary citizen, even
when the police officer is off duty, prohibiting
sexual relationships between police officers and
minors may therefore rationally advance a legitimate
state interest, we think, especially if the police
officer uses his or her occupation to influence the
minor into the relationship.”

Id. at 485.

However, the Court noted, “Our greater concern is with

the second prong of the test: whether the state’s method or

means of achieving its interest is rational.” Id. at 486.

The Court contrasted the statute with other subsections of

the same statute, each of which “requires the offender have

custody, authority, control, and/or some sort of other

authoritative relationship with the victim.” Id. at 487.

For example, the Court noted that other subsections

“prohibit coaches, scouting leaders, instructors, and

clerics from having sexual relationships with members of

their teams, troops, and congregations” but “does not

58
prohibit such relationships with other minors not under the

influence or supervision of the offender.” Id. at 487. The

Court noted that the statute being challenged prohibited

peace officers from having sexual conduct with a minor

without regard to whether the officer “used his or her

position to facilitate the offense or the victim was in the

custody, control, or under the supervision or influence of

the peace officer.” State v. Mole at 487. The Court

concluded,

“We agree with Mole that one’s occupation as a peace

officer alone, without more, does not provide a person
with an ‘unconscionable advantage’ over a minor.

Consequently, because the state’s method or means of

achieving its interest is not rational, R.C.
2907.03(A)(13) fails the second prong of the rational-
basis test.”

Id. at 488 (emphasis added).

Likewise, in the present case, the statute criminalizes

all sexual acts between school employees and students

without requiring any showing that the employee “used his

or her position to facilitate the offense or the victim was

in the custody, control, or under the supervision or

influence of the” school employee. Accordingly, while the

state may have a legitimate interest in prohibiting school

employees from using their position to sexually exploit

59
students, the statute’s broad criminalization of all sexual

acts between any school employee and any student is not

rationally related to that goal.

For these reasons, §13A-6-81, as defined by former

§13A-6-80 as it existed at the time of Parker’s conduct, is

unconstitutional as applied in this case under the Due

Process Clause.

III. ALA. CODE §13A-6-81, AS DEFINED BY FORMER §13A-6-80,

VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT

Ala. Code §13A-6-81, as defined by former §13A-6-80,

also violates the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution. The test for

determining the appropriate level of scrutiny was set out

in State v. C.M., 746 So.2d 410, 414 (Ala. Crim. App.

1999):

“Claims that a law violates an equal protection right

have traditionally been reviewed applying one of three
levels of review. The level of review depends on the
parties involved and the right affected by the law. If
the law affects a fundamental right or a suspect class
a reviewing court applies the ‘strict scrutiny’
standard of review. An intermediate level of review is
applied if the law affects a protected economic
interest or liberty. If the law ‘does not employ a
classification based on race, sex, national origin, or
legitimacy of birth and does not impinge upon a
fundamental right’ it is subject to review under the
rational-relationship analysis.’”

60
State v. C.M., 746 So.2d 410, 414 (Ala. Crim. App.

1999)(quoting Ex parte Robertson, 621 So.2d 1289 (Ala.

1993)(emphasis added).

Alabama law treats employees of schools differently

than members of every other occupation with regard to their

private, consensual sexual relationships with others who

are of the age of consent. Ala. Code §13A-6-81

criminalizes such conduct between all school employees and

every person who is “a student.” Alabama law imposes no

criminal liability on members of other occupations for

engaging in consensual sexual conduct with any person 16 or

over even if that person is a minor over whom they hold

authority or with whom they hold a position of trust.12

Because the classification in question touches upon the

right to private, consensual sexual intimacy – a liberty

interest which the United States Supreme Court recognized

was entitled to constitutional protection in Lawrence,

12The one exception to this is Ala. Code §14-11-31 which

creates the offense of “custodial sexual misconduct.” Ala.
Code §14-11-31, as defined by §14-11-30 makes it a class C
felony for persons with “responsibility for the care,
control, or supervision of pretrial or sentenced persons in
a penal system or detention facility” to engage in sexual
conduct with people in custody, or for probation or parole
officer to have sexual conduct with “a person who is under
the supervisory, disciplinary, or custodial authority of
the officer.”

61
Windsor, and Obergefell – the statute is subject to strict

scrutiny, or at least intermediate scrutiny – as noted in

State v. C.M. For all of the reasons already discussed

above with regard to substantive due process, which are

herein incorporated by reference, the classification in

this case is not narrowly tailored to a compelling state

interest or necessary to the furtherance of any conceivable

important governmental interest.

Nor is the classification even rationally related to

any legitimate state interest. In State v. Mole, discussed

supra, the Court found that the statute which criminalized

sexual conduct between all peace officers and almost all

minors, violated the equal protection clause because it was

not rationally related to any state interest. The court

based this on the fact that other subsections of the same

statue criminalized sexual conduct between coaches and

their minor players, scout leaders and their minor troop

members, and clerics and minor members of their

congregations. However, the subsection applying to peace

officers included no such authoritative limitation and

broadly criminalized all sexual conduct between peace

officers and most minors.

62
 The equal protection problems with the statute in the

present case are even more glaring than those outlined in

State v. Mole. Compared to most states, Alabama law

provides broad freedom from criminal liability for

consensual sexual conduct with those who are of the age of

consent. Unlike many other states, Alabama law imposes no

criminal liability on members of any other occupation

(outside the state’s penal system) for consensual sexual

conduct with 16, 17, and 18 year olds. This freedom is

denied to the members of one, and only one occupation –

school employees. Therapists and doctors are not

criminally prohibited from having consensual sex with their

16 year old patients.13 Ministers are not criminally

prohibited from having consensual sex with 16 year olds in

their congregation. Attorneys are not criminally

prohibited from having consensual sex with their 16 year

old clients. However, Ala. Code §13A-6-81, as defined by

former §13A-6-80, criminalizes any sexual conduct between a

school employee and almost all minors, since nearly all 16,

17, and 18 year olds are going to be students enrolled in

some school, and it included no requirement that the school

13Certainly there may be civil penalties, but the conduct

is not criminally prohibited.

63
employee in question even have contact with the student in

any official capacity. A 21 year old janitor for the

Tuscaloosa City School system who goes to Gulf Shores for

spring break and has sex with a 18 year old senior from

Daphne High School is guilty of a class B felony.14 But a

65 year old doctor, minister, therapist, or attorney is not

subject to criminal liability in Alabama for having

consensual sex with a 16 year old over whom he has

authority or with whom he holds a position of trust. There

is no rational basis for this gross disparity in treatment

between school employees and other occupations with regard

to the criminalization of their private, consensual sexual

conduct.

Whatever the State’s purpose was in enacting Act 2010-

497 in its original form, the State’s grossly differential

treatment of school employees and the members of every

other occupation is not rationally related to any

conceivable state interest. Accordingly, Ala. Code §13A-6-

81 is unconstitutional under the Equal Protection Clause of

the Fourteen Amendment.

As noted above, a prison guard having consensual sex with

14

a 16 year old under his authority would be guilty of only a

class C felony.

64
 CONCLUSION

For the foregoing reasons, the Defendant respectfully

requests that this Honorable Court reverse the Judgment of

the Trial Court with instructions that the Defendants’

convictions based on her guilty pleas be set aside, and the

charges against her dismissed.

Respectfully submitted this 6th day of February, 2018.

s/ Mary Virginia Buck

Mary Virginia Buck
Attorney for Appellant
13112 Martin Road Spur
Northport, AL 35473
(205) 752-6773
[email protected]

CERTIFICATE OF SERVICE

I hereby certify that I have this date served a copy of

the foregoing on the Alabama Attorney General by means of

e-filing at [email protected].

This the 6th day of February, 2018.

s/ Mary Virginia Buck

Mary Virginia Buck

65
 APPENDIX

ATTACHMENT A

LIST OF ADVERSE RULINGS

 ADVERSE RULINGS

Trial Court’s denial of the Motion to Hold §13A-6-81(a)

Unconstitutional As Applied (C.90, 165).

Trial Court’s reiteration of its denial of the Motion to

Hold §13A-6-81(a) Unconstitutional As Applied (R.7, 14).

a
 APPENDIX

ATTACHMENT B

ACT 2010-497
 2010 Alabama Laws Act 2010-497 (H.B. 38)

ALABAMA 2010 SESSION LAW SERVICE

2010 REGULAR SESSION

Additions and deletions are identified in House Bills.

Act 2010–497
H.B. No. 38

CRIMES AND OFFENSES—SEX CRIMES—ACTS BETWEEN SCHOOL EMPLOYEES AND STUDENTS

By: Representative Newton (D)

Enrolled, An Act, Relating to crimes and offenses; to provide for the crimes of a school employee engaging in a
sex act, deviant sexual intercourse, or having sexual contact with a student; to provide penalties; and in connection
therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds
within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05
of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. (a) A person commits the crime of a school employee engaging in a sex act or deviant sexual intercourse
with a student under the age of 19 years if he or she is a school employee and engages in a sex act or deviant sexual
intercourse with a student, regardless of whether the student is male or female. Consent is not a defense to a charge
under this section.

(b) As used in this section, “sex act” means sexual intercourse with any penetration, however slight; emission is not
required.

(c) As used in this section, “deviant sexual intercourse” means any act of sexual gratification between persons not
married to each other involving the sex organs of one person and the mouth or anus of another.

(d) The crime of a school employee engaging in a sex act or deviant sexual intercourse with a student is a Class B
felony.

Section 2. (a) A person commits the crime of a school employee having sexual contact with a student under the age
of 19 years if he or she is a school employee and engaging in sexual contact with a student, regardless of whether the
student is male or female. Consent is not a defense to a charge under this section.

(b) As used in this section, “sexual contact” means any touching of the sexual or other intimate parts of a student,
done for the purpose of gratifying the sexual desire of either party. The term includes soliciting or harassing a
student to perform a sex act.

(c) The crime of a school employee having sexual contact with a student is a Class A misdemeanor.

Section 3. A school employee charged with the crime of engaging in a sex act or deviant sexual intercourse with a
student or the crime of having sexual contact with a student may be placed on paid administrative leave while the
charge is adjudicated. Upon the adjudication of the charge, further disciplinary action may be taken in accordance
with the Teacher Tenure Act, Section 16–24–1, et seq., the Teacher Accountability Act, Section 16–24B–1, et seq.,
or the Fair Dismissal Act, Section 36–26–100, et seq., whichever is applicable.
Section 4. For purposes of this act, “school employee” includes a teacher, school administrator, student teacher,
safety or resource officer, coach, and other school employee.

Section 5. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure
of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing
as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the

1
bill defines a new crime or amends the definition of an existing crime.
Section 6. This act shall become effective on the first day of the third month following its passage and approval by
the Governor, or its otherwise becoming law.

Approved April 21, 2010.

2
 APPENDIX

ATTACHMENT C

Act 2016-354 (IN PERTINENT PART)

 2016 Alabama House Bill No. 238, Alabama 2016 Regular Session

ALABAMA BILL TEXT

TITLE: Children, criminal penalties for distrib. of harmful material to minor by school employee, out of
court statements by minors allowed under certain conditions, certain individuals with certain credentials
auth. to work in child care facilities, criminal penalties for sexual abuse by foster parents, Sec. 38-7-20 added;
Secs. 13A-12-200.5, 15-25-31, 26-14-3, 38-7-2 am’d.

VERSION: Adopted
May 11, 2016
Collins

SUMMARY: An Act, Relating to children; to add Section 13A-6-82.1, to the Code of Alabama 1975, to create the
crime of a school employee transmitting obscene material to a student; to amend 13A-6-80, 13A-6-81, 13A-6-82,
Code of Alabama 1975, relating to sexual conduct by school employees, to further provide for the crimes of sexual
contact or soliciting a sex act with a student; to amend Section 15-25-31, Code of Alabama 1975, to provide for the
admissibility of certain out-of-court statements by children under the age of 12 years in certain child abuse and
neglect criminal proceedings; to amend Section 26-14-3, Code of Alabama 1975, to reference a specific definition of
child abuse and neglect in mandatory child abuse and neglect reporting provisions; to amend Section 38-7-2, Code
of Alabama 1975, to revise the definition of day care center; to add Section 38-7-20 to the Code of Alabama 1975,
to authorize an individual under 19 years of age with certain credentials to work in a day care center and to count in
the staff-child ratio; to provide specific criminal penalties for sexual offenses by foster parents against foster
children; to amend Section 15-20A-5, Code of Alabama 1975, as last amended by Act 2015-463, to specify that a
conviction of a sex offense by a foster parent would subject a defendant to sex offender registration; and in
connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local
funds within the meaning of Amendment of the Constitution of Alabama of 1901, now appearing as Section 111.05
of the Official Recompilation of the Constitution of Alabama of 1901, as amended

TEXT:

ACT #2016-354

HB238

172700-4

By Representative Collins

RFD: Judiciary

First Read: 16-FEB-16

ENROLLED,

An Act, Relating to children; to add Section 13A-6-82.1, to the Code of Alabama 1975, to create the crime of a
school employee transmitting obscene material to a student; to amend 13A-6-80, 13A-6-81, 13A-6-82, Code of
Alabama 1975, relating to sexual conduct by school employees, to further provide for the crimes of sexual contact or
soliciting a sex act with a student; to amend Section 15-25-31, Code of Alabama 1975, to provide for the
admissibility of certain out-of-court statements by children under the age of 12 years in certain child abuse and
neglect criminal proceedings; to amend Section 26-14-3, Code of Alabama 1975, to reference a specific definition of
child abuse and neglect in mandatory child abuse and neglect reporting provisions; to amend Section 38-7-2, Code
of Alabama 1975, to revise the definition of day care center; to add Section 38-7-20 to the Code of Alabama 1975,
to authorize an individual under 19 years of age with certain credentials to work in a day care center and to count in
the staff-child ratio; to provide specific criminal penalties for sexual offenses by foster parents against foster
children; to amend Section 15-20A-5, Code of Alabama 1975, as last amended by Act 2015-463, to specify that a
conviction of a sex offense by a foster parent would subject a defendant to sex offender registration; and in

1
connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local
funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section
111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Section 13A-6-82.1 is added to the Code of Alabama 1975, to read as follows:

§13A-6-82.1.

(a) A person commits the crime of school employee distributing obscene material to a student if he or she is a school
employee and distributes or transmits, by any means, obscene matter that depicts sexual intercourse, sexual
excitement, masturbation, breast nudity, genital nudity, or other sexual conduct to a student.

(b) A school employe employee distributing obscene material to a student is a Class A misdemeanor.

Section 2. Sections 13A-6-80, 13A-6-81, 13A-6-82, Section 15-20A-5, Code of Alabama 1975, as last amended by
Act 2015-463, 15-25-31, 26-14-3, and 38-7-2, Code of Alabama 1975, is amended to read as follows:

Ӥ13A-6-80.

”(a) For purposes of this article, school employee includes a teacher, school administrator, student teacher, safety or
resource officer, coach, and volunteer adult volunteer in a position of authority or any other school employee
who has contact with a student in his or her official capacity as a school employee.

(b) For purposes of this article, a “student” is defined as any person under the age of 19 years enrolled or
attending classes in a licensed or accredited public, private, or church school that offers instruction in grades
K-12, regardless of whether school is in session.

Ӥ13A-6-81.

”(a) A person commits the crime of a school employee engaging in a sex act or deviant sexual intercourse with a
student under the age of 19 years under the age of 19 years if he or she is a school employee and engages in a sex
act sexual intercourse as defined by Section 13A-6-60(1) or deviant sexual intercourse as defined by 13A-6-60(2)
with a student, regardless of whether the student is male or female. Consent is not a defense to a charge under this
section.

”(b) As used in this section, sex act means sexual intercourse with any penetration, however slight; emission is not
required.

”(c) As used in this section, deviant sexual intercourse means any act of sexual gratification between persons not
married to each other involving the sex organs of one person and the mouth or anus of another.

”(d) (b) The crime of a school employee engaging in a sex act or deviant sexual intercourse with a student is a Class
B felony.

Ӥ13A-6-82.

”(a) A person commits the crime of a school employee having sexual contact with a student under the age of 19
years under the age of 19 years if he or she is a school employee and engaging engages in sexual contact, as
defined by Section 13A-6-60(3), with a student, regardless of whether the student is male or female. Consent is not
a defense to a charge under this section. The crime of a school employee having sexual contact with a student is
a Class C felony.

”(b) A person commits the crime of a school employee soliciting a sex act with a student under the age of 19

2
years if he or she is a school employee and solicits, persuades, encourages, harasses, or entices a student to
engage in a sex act including, but not limited to, sexual intercourse, as defined by Section 13A-6-30(1), deviate
sexual intercourse, as defined by Section 13A-6-30(2), or sexual contact, as defined by Section 13A-6-30(3).
The crime of soliciting a student to perform a sex act is a Class A misdemeanor.

”(b) As used in this section, sexual contact means any touching of the sexual or other intimate parts of a student,
done for the purpose of gratifying the sexual desire of either party. The term includes soliciting or harassing a
student to perform a sex act.

”(c) The crime of a school employee having sexual contact with a student is a Class A misdemeanor.