In just two days, both the Iowa House and Senate unanimously approved a bill drafted in response to a recent Iowa Supreme Court ruling. A majority of justices overturned the conviction of an assistant high school basketball coach who had engaged in a consensual sexual relationship with a student, on the grounds that he didn’t meet the definition of a “school employee” under Iowa’s sexual exploitation statute. House File 2474 closes that loophole, but unfortunately, State Representative Mary Wolfe identified a drafting problem that could criminalize behavior many people would not consider sexual exploitation.

Wolfe is a criminal defense attorney by trade and gave me permission to reproduce part of her blog post below. But you should head over to her Iowa House Happenings blog and read the whole thing. Click here to read the full text of the April 11 Iowa Supreme Court ruling and dissent.

Fewer than two weeks elapsed between the Iowa Supreme Court ruling and the passage of House File 2474. Legislative leaders are hoping to adjourn for the year in the coming week. But speedy work doesn’t always produce well-drafted laws.  

Wolfe points out,

I’m pretty sure that the primary intent of House File 2474 was to amend  709.15′s statutory definition of “school employee”  in such a way as to ensure that in the future, if a high school coach chooses to engage in sexual conduct with a member of his team (again, the focus is on high school students and specifically high school students over the age of 16 because it’s already a more serious sex offense for a coach – or any adult – to engage in sexual relations with students under the age of 16) that coach can be prosecuted for a felony sex offense. Which makes sense – a high school coach is by definition an authority figure to the members of his team, and the balance of power between a coach and a player is at least as uneven as the balance of power between a teacher and a student, and thus any sexual relationship between the two is inherently coercive. Plus, coaches and players should be focusing on coaching and playing, and not on hooking up with one another. So yes, I agree we need to fix the Nicoletto loophole.

Unfortunately, the “fix” we passed out of the House last night (and which was passed out of the Senate today, and which will become law immediately upon being signed by the Governor within the next few days) is not, in my opinion, the best fix; like many criminal justice bills we pass, it’s a little too broadly drafted, and thus once enacted will criminalize Nicoletto-type behavior (which is good) but will also criminalize behavior that simply is not and should not be a crime (which is bad).

The problem, as it often is, is in the drafting.  HF 2474 amends Iowa Code section 709.15(1)(f)(2014) – the statutory definition of “school employee” – as follows:f. “School employee” means a practitioner as defined in section 272.1  or a person issued a coaching authorization under section 272.31, subsection 1.  Since all school coaches who aren’t licensed teachers must have a coaching authorization, under the bill, a high school coach will be considered a “school employee,” and if s/he engaged in sexual conduct with one of his/her players, s/he could be prosecuted for/convicted of the crime of Sexual Exploitation of a Minor. That’s the good part.

Here’s the bad part: Under the bill, it’s not just high school coaches like Mr. Nicoletto who are now considered school employees. As soon as the Governor signs HF 2474 into law, it’s anyone who has (ever?) obtained a coaching authorization pursuant to Iowa Code 272.31 who will immediately be considered a “school employee” for purposes of prosecution under 709.15. Regardless of when the person was issued the coaching authorization, and regardless of whether or not the person has ever actually been employed by a school in any type of capacity, coaching or otherwise.

And because it’s not particularly difficult or time-consuming to obtain a coaching authorization –a person must complete four semester hours of specific classes, which can be done online or through a local community college ( http://www.kirkwood.edu/coaching) –  there are a whole lot of Iowans with valid  coaching authorizations  including 170 teenagers, all of whom will be subject to prosecution as “school employees” as soon as the Governor signs HF 2474 into law.

Which creates a serious problem for these kids, since I assume that at least some, if not most, of these 170 teenagers with coaching authorizations have a boyfriend or girlfriend who is still in high school – in fact, I assume some of these kids are themselves still high school students.  And once House File 2474 becomes law, if one of these kids so much as kisses his/her high school student girlfriend/boyfriend, s/he is guilty of the crime of Sexual Exploitation by a School Employee. Period. No question about it. Even if the only coaching s/he does is on a part-time basis at the elementary school in the next county.  Even if s/he’s no longer doing any coaching at all, or has never done any coaching. If s/he’s been issued a coaching authorization, any sexual conduct (including kissing) with any high school student (even an 18 or 19-year-old high school senior) is a felony sex offense.

So overnight, enactment of this bill is going to criminalize normal teenage consensual sexual conduct (e.g., kissing) between two teenagers over the age of 16 who have never had, and never will have, any type of coach/student relationship, based solely on the fact that one of the teenagers has been issued a coaching authorization. This is clearly a ridiculous result, and it’s one that could have been avoided with a few minor tweaks to the language in HF 2474. But this was a leadership bill, on a (kind of bizarrely) fast track, and only about eight hours elapsed between the time the bill was filed and the time it was passed out of the House, so there really wasn’t much opportunity to negotiate tweaks to the bill.

Wolfe raised concerns with some colleagues about the bill’s “over broad scope,” but they dismissed her fears as silly, because prosecutors will surely not go after high school students who are kissing their fellow high school students.

Wrong – because assuming that all prosecutors will look the other way and ignore all violations of a specific law by a specific group of people just because it’s obviously a stupid law as applied to the specific group of people is an extremely irresponsible way to handle this problem, and I was pretty appalled that the people with whom I discussed my concerns (non-legislators, btw) even suggested it as a viable option. Prosecutorial discretion is a good thing, and an important tool, and I sure wish prosecutors would exercise it more often, but the key here is that it’s completely discretionary – and the idea that every county attorney in the state will be willing to ignore the fact that a legal adult (albeit a teen age legal adult) is committing a felony sex offense (albeit a harmless one) with a high school student on an ongoing basis is just crazy.  And of course, prosecuting a teenager as a sex offender for making out with his teenage girlfriend is also crazy, but just as the IA Supreme Court Justices like to point out (a lot) that they don’t write the laws, they just interpret them, most prosecutors tend to take the position that they don’t write the laws, they just prosecute violations of the laws. Which is a pretty legitimate position, imo.