This story was originally published on Jan. 19, 1990.
A high school teacher who had sex with a 17 year old student did not violate state child abuse laws, a Superior Court judge ruled Thursday.
Judge Karl Johnstone dismissed three felony counts of child sex abuse against former Bartlett High School English teacher Gordon “Satch” Carlson, saying the law under which Carlson was charged appears not to apply to teachers.
If legislators who passed the law meant to include teachers, the wording they chose is “unconstitutionally vague,” Johnstone said in a written decision.
“Had the legislature intended these statutes to apply to teachers, it could have said so in precise language. Other statutes use the specific term “teacher’ when they are intended to apply to teachers.”
“I’m gratified by the decision,” Carlson said Thursday evening. “My entire life has been on hold for months. I’m looking forward to being allowed to travel and write.”
Larry Weeks, director of criminal prosecutions for the state, said he hasn’t decided yet if Johnstone’s ruling will be appealed to a higher court. One factor that “would be ground into the decision” is whether the legislature seems likely to pass a law specifically banning sex between teachers and students, Weeks said.
A bill to classify student teacher sex as a felony will pass the Senate within two weeks, Senate President Tim Kelly predicted to The Associated Press.
Several bills, introduced before the legislative session, would make it a felony for a teacher to have sex with a 16 or 17 year old student. The bills would apply to public and private school teachers, school employees and volunteers. Conviction could bring a maximum $75,000 fine and up to 30 years in jail, the AP reported.
Carlson, 45, was indicted on Nov. 8 for intercourse, digital penetration and fondling a 17 year old female who took two classes from him during the 1989 winter semester. He had been a teacher for nearly 20 years and was a columnist for the Daily News and Autoweek Magazine.
The sex, which Carlson has not denied and which the girl has said was consensual, took place on school grounds.
The age of consent in Alaska is usually 16, but a special law raises it to 18 in cases where a child is entrusted to an adult’s care “by authority of law.”
Before Carlson was charged, the law was widely understood as applying to foster parents and employees of institutions where teenagers are confined by court order. It had never been used against a teacher.
With little guidance from the legislature about who else they might have intended the law to apply to, Johnstone concluded that the phrase “by authority of law” means a court ordered guardian. A high school teacher does not fall within that category, he said.
Johnstone stopped just short of accusing the Anchorage District Attorney’s Office of selective prosecution, mentioning in his decision “evidence that the statutes have been applied unevenly in the past,” an apparent reference to two cases where state prosecutors concluded the law in question did not apply to teachers.
“Where the legislature does not clearly define the scope of a statute’s coverage, the prosecution has unfettered discretion to apply the statute to whomever it desires,” Johnstone said.
“No matter how distasteful or undesirable certain alleged conduct may appear to the state or the public, the courts cannot permit the prosecution to assume this legislative responsibility. The state should not have the discretion whether or not to charge an individual teacher with an unclassified felony, carrying a maximum penalty of 30 years in prison with a presumptive sentence of 8 years, based on a statute which on its face does not clearly apply to teachers.”
Defense attorney Jeff Feldman said he was confident Johnstone’s decision would be upheld if the state chooses to appeal it.
“If the legislature wants to prohibit sex between men and dogs, they can’t say men and cats,” Feldman said. “They can say men and four legged animals, but they can’t say cats.”
Even if the state accepts Johnstone’s decision, dismissal of the charges against Carlson solves only one of the legal problems created by the case. Still pending is a massive civil lawsuit brought by the Anchorage School District against police and prosecutors who raided district buildings on Oct. 4, armed with search warrants giving them permission to read private records for possible evidence against Carlson and six named school officials. State lawyers accused school officials of violating state child abuse reporting laws by not turning Carlson in earlier than they did.
The school district says the search warrants were obtained through lies and improperly executed, violating privacy and search and seizure laws. A grand jury is tentatively scheduled to begin hearing evidence on the dispute on Monday.
Attorney James McComas, who represents the school district, hailed Johnstone’s ruling as proof that prosecutors and police obtained the disputed search warrants “purportedly to find evidence of an offense that doesn’t exist.”
McComas said it would be “plain bad faith” for police or prosecutors to argue before a grand jury that school officials “committed a crime by not reporting something that wasn’t a crime.”
Bill Coats, superintendent of schools and one of the officials named in the search warrants, said the legality of Carlson’s conduct had nothing to do with the decision to force him to resign.
“We don’t tolerate teachers exploiting a student regardless of the age of the student,” Coats said. When the district learned of Carlson’s sexual misconduct, it acted in an “efficient, effective . . . manner. We got him out. That’s a done deal.”
Assistant District Attorney Steve Branchflower, who made the initial decision that Carlson’s behavior was a felony and who persuaded a District Court judge to issue the disputed search warrants, declined to comment on Johnstone’s decision.
All in all, it was not a good week for law enforcement officials involved in high profile sex cases. Last Friday, after a contentious six week trial, an Anchorage jury acquitted former policeman Frank Feichtinger of 16 charges that he used his office to trick teenagers, also above the age of consent, into sexual misconduct with him.
Weeks, the prosecutor, said the lesson to be gleaned from the two courtroom defeats is that police and prosecutors are willing to take difficult cases.
“If you just take the easy cases, you don’t end up with these things happening,” Weeks said. “We’re not responsible for making everything come out in the way that we might feel like is appropriate. . . . We’re supposed to do our work and the system’s supposed to do its work.”
Anchorage Police Chief Kevin O’Leary, who was criticized in both cases, was unavailable for comment Thursday. Capt. Tom Walker, speaking for APD, said, “Our position is we operated in good faith.”
“The decision was made that, yes, it was a crime under the existing title and we would go forward with it. We knew it was going to be challenged. We are disappointed at the outcome.”
Walker said the question of whether the school district obeyed reporting laws is a separate issue and is still under investigation.