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Attorneys argued for nearly three hours in Marietta last week over whether former Harrison High School teacher and orchestra conductor Steven Parkman should be prosecuted under Georgia’s sodomy statute for having a sexual relationship with one of his students. Cobb County Superior Court Chief Judge Kenneth O. Nix heard the arguments Tuesday afternoon on a motion by Parkman’s defense attorney, Noah H. Pines, that the charges be dismissed as unconstitutional. Nix, who spoke little and did not show which way he was leaning, is expected to rule on the motion within the next few weeks. Each side appears poised to appeal an adverse ruling from Nix to the Supreme Court of Georgia. The arguments over Parkman’s case stem from a Supreme Court ruling last summer reversing the conviction of an Augusta high school teacher who had a consensual sexual relationship with a student who was over the age of consent, which is 16 in Georgia. At issue in that case, Chase v. State, 285 Ga. 693, was O.C.G.A. § 16-6-5.1, an awkwardly worded state law on “sexual assault against persons in custody.” The law says a person in custody cannot consent to sexual contact, but it does not apply to teachers. Then-Chief Justice Leah Ward Sears noted for a 5-2 majority that the alleged victim had testified that she had encouraged the contact, so the conviction had to be reversed. “The General Assembly knows full well how to eliminate the consent defense when it wishes to do so,” Sears added. The Chase decision led Cobb Superior Court Judge Robert E. Flournoy III in December to issue a directed verdict for a former Marietta High School teacher, Christopher King, after the student with whom he had a sexual relationship testified that she was a willing participant. Immediately following Flournoy’s decision, Cobb County District Attorney Patrick H. Head reindicted Parkman, adding a sodomy charge to the charge of sexual assault against persons in custody already filed. Specifically, the prosecutor said Parkman violated the sodomy law by having oral sex with the student in a room at the high school and in the parking lot of a public library. The sodomy charge led to a vigorous debate Tuesday over the limits of Powell v. State, 270 Ga. 327, the 1998 Georgia Supreme Court decision that decriminalized private, noncommercial sodomy between consenting adults. Pines contended that his client is “being indicted on an offense that really doesn’t exist.” Pines argued that his client was the victim of selective prosecution because the current Georgia law does not make teacher-student sex a crime if the student is over the age of consent. Pines noted that the Georgia General Assembly is already at work on a change in the law, and even suggested a simpler wording that would expressly prohibit sex between elementary and secondary teachers and students. Assistant District Attorney Allen R. “Rusty” Knox carried the argument for the state, attempting to place the prosecution in perspective after the Chase decision last summer and the King directed verdict in December. “High school students are vulnerable to sexual assault by teachers. That’s the whole point of this case,” Knox told the court. “He was a teacher, and she was someone who was supposed to be learning from him.” In answer to Pines’ argument, Knox said, “We are not attempting to prosecute sodomy in general. We are attempting to prosecute sodomy at Harrison High School and in the parking lot of a public library.” He added that a teacher does not have a reasonable expectation of privacy in a school building or a library. “The state can think of no place at Harrison High School that was intended for sex.” Knox acknowledged that the DA’s office had to change its strategy after the Chase and King cases. “In seeking justice for this child and her family who were harmed, the state is seeking to prosecute under the sodomy statute,” Knox said. In briefs filed objecting to the defense motion to dismiss, Knox cited previous sodomy cases where courts found no right of privacy for acts of sodomy in public places. They included: Mauk v. State, 242 Ga. App. 191 (2000) — which afforded no right of privacy when sodomy occurred in an open field; Gagnon v. State, 240 Ga. App. 754 (1999) — which involved a lingerie shop room; and Stover v. State, 256 Ga. 515 (1986) — which cited sodomy beside a dirt road. Knox’s brief says, “the state has a compelling interest in upholding the sanctity of its primary and secondary schools and in protecting students from being sexually exploited and harassed by their teachers.” The brief adds that this “compelling state interest well outweighs any privacy interest the defendant may have in engaging in sexual conduct with his students.” Before the hearing began, Pines objected to the presence of two cameras in the courtroom — one from WSB-TV and one from the Fulton County Daily Report — saying he did not have 24 hours notice that the news organizations had asked the judge for permission to shoot pictures at the hearing and thus did not have time to prepare an argument against them. He asked the judge to remove the cameras because of the sensitive nature of the arguments, which would repeatedly name the alleged victim. Knox said he had no position on the presence of cameras. Nix ordered the cameras removed with the stipulation that notice be given at least 24 hours in advance if the case goes to trial. The student in the case, who is now 19, did not appear at the hearing. Parkman attended, but sat silently throughout. The arguments were indeed sensitive — especially for the defense counsel. At one point, in objecting to the sodomy statute, Pines gave a hypothetical example that involved him having sex on the Marietta Square with his own wife. Under Georgia law, Pines said, he would be guilty of a misdemeanor for public indecency if he had sexual intercourse in public. But if he had oral sex, he would be guilty of a felony punishable by a minimum of a year in prison and up to 20 years, and lifetime on the sexual offenders’ registry. “There is no way that public sodomy is any worse or better than public intercourse,” Pines told the judge. “Public intercourse is probably worse than public sodomy.” Pines also said that Georgia has left a law on the books that is “ridiculous” because “no one wanted to be known as the person who fixed the sodomy statute.” The case is State v. Parkman, No. 09-9-5309.

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