A Tuscaloosa County judge is considering a request by the attorney for a former Brookwood High School teacher to declare unconstitutional the state's law that prohibits a school employee from having sex with a student under age 19.
Joe Bradley Petrey, 28, of Northport, was charged in August under the school employee sex law for having sex with an 18-year-old female student.
A number of teachers have been charged under that law since it was enacted by the Alabama Legislature in 2010.
Rep. Demetrius Newton, D-Birmingham, the bill's sponsor, said at the time that he introduced the bill because of an incident where a teacher and a 16-year-old student were allegedly having a sexual relationship. He said the school could take no action against the teacher because the student was 16, which is the age of consent in Alabama. Newton died in 2013.
The bill provides that consent is not a defense and a person convicted under that law faces a sentence of two to 20 years in prison.
Petrey resigned from his job August 3, less than a week before former Tuscaloosa County Superintendent Liz Swinford announced she had received "visual and written allegations of the relationship."
The investigation centered on compromising photographs that were leaked anonymously over the internet portraying the two in a sexual relationship while she was still a student and he a teacher.
But Petrey's attorney, Joel Sogol, believes the law is unconstitutional and on Feb. 28 he filed a motion asking Tuscaloosa Circuit Judge John England to declare the law unconstitutional.
A hearing was held Tuesday afternoon and the judge said he would issue a ruling later, Sogol said.England wants more information from the district attorneys and then he gets to respond, he said.
Jonathan Cross, chief deputy district attorney for Tuscaloosa County District Attorney's Office, said the district attorney's office opposes the motion and maintains the law is constitutional.
Sogol, however, said "the statute is terribly vague" and doesn't define that the school employee must be employed at the same school as the student.
Under Alabama law a 16-year-old is capable of giving consent to sexual conduct as long as they are not mentally incapacitated, physically helpless, Sogol states in a 13-page court brief filed Tuesday before the hearing. He also argues that rape laws have long been in place to protect students or anyone who is older or younger than 16 from being preyed upon by teachers or others using their positions to make unwanted sexual contact.
The school employee law violates substantive due process privacy rights because in this case it criminalizes consensual sexual activity conducted in private.
Instead of creating a new law, legislators could have raised the minimum age of consent to 19 or toughened rape laws for those who use their authority to coerce consent, Sogol stated, "but instead chose to unconstitutionally intrude upon the privacy of school employees."
State law allows a school employee to choose a sexual partner from anyone over the age of 16 provided the person is not enrolled as a student, Sogol stated. But the state school employee law violates the equal protection clause of the Constitution by criminalizing a personal relationship between two consenting parties - a student and teacher - that is not criminalized between others similarly situated parties.
Sogol gives this example of what could happen under the law:
"Sam is an 18-year-old freshman at the University of Alabama who works 10 hours per week in the Office of the Dean of Students. Because of that, Sam is a 'school employee.' Sam has an 18-year-old girlfriend who is also a student at the University of Alabama. Sam and his girlfriend engage in a clearly consentual 'sex act.' Sam has violated this law."
The girl who had sex with Petrey filed an affidavit in the case supporting Petrey and stating she and her parents would not participate in his prosecution. The girl said that she met Petrey during her freshman year at Brookwood High School. She said had classes he taught in 9 th grade, 11 th grade, and her senior year.
"I was something of a loner at school and in talking with Brad I found that we had a lot in common, far more than most of the other students and I had," the girl stated.
Another teacher at times accompanied her and Petrey, the girl stated. During the second semester of her junior year there was gossip about her and Petrey, but it was untrue, she wrote.
Not until after she turned 18 in September of her senior year did the relationship between her and Petrey turn sexual, the girl stated. The relationship was conducted in private, away from school, she stated.
Petrey didn't use his position as a teacher and coach to coercer her into a sexual relationship, the girst stated in the affidavit. "What I did was totally voluntary and done of my own free will. I am not a victim and except that Brad works as a teacher, this relationship would have been our own private business," she stated.
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While their relationship was going on they both knew what they were doing was morally wrong and they decided to end it before it became public, according to the affidavit. "Through this all, the only people who lied or misled me were the police, who promised me if I would tell them what happened, nothing would happen to Brad. They lied!," the girl stated in the affidavit.
"Had Petrey been a volunteer coach and not a school employee, the statute would not even apply," Sogol writes in a brief filed Tuesday before the hearing. "It was (the girl) who initiated this relationship because she found this man, who was not much older than her, physically attractive and interesting. He exercised no power over her. He never tried to use his position of authority over her."
"For a violation of trust, Petrey appropriately lost his job, but the Constitution prohibits a criminal prosecution," Sogol writes in his 13-page brief.
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