DOE v. SOUTHINGTON BOARD OF EDUCATION, No. X07-CV02 0080760 S (Dec. 1, 2004)

SFERRAZZA, JUDGE.

The defendant, Raymond Acey, moves to strike the first count of the third, revised complaint for legal insufficiency. A motion to strike "admits all the facts well pleaded; it does not admit conclusions or the truth or accuracy of opinions stated in the pleadings." Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).

In the first count the plaintiff alleges that, in 1984 and 1985, Acey was a teacher employed by the Southington school system and was an assistant coach for the girls basketball team at Southington High School. The movant purportedly developed a personal and intimate relationship with the plaintiff who was sixteen or seventeen years old at the time and a member of the team. Paragraph sixteen avers that "Acey took advantage of his position of authority as a coach and the trust he had built with his players, to abuse her sexually." Nowhere in this count does the plaintiff allege that her sexual relationship with Acey was nonconsensual.

Under today's sexual assault and exploitation laws, a coach is forbidden from engaging in sexual intercourse with a player who is younger than eighteen, attends secondary school, and receives coaching from the actor in a secondary school setting. C.G.S. § 53a-71(a)(9), as amended by P.A. 04-130. Also, a teacher is presently barred from sexual relations with a student enrolled in the same school system which employs the teacher. C.G.S. § 53a-71(a)(8), as amended by P.A. 04-130. However, in the version of § 53a-71 in effect during 1984 and 1985, no such proscriptions existed.

The movant bases this motion to strike on the absence of any allegation of nonconsensual sexual intercourse. He argues that his conduct in 1984 and 1985 must be assessed by the substantive laws concerning sexual misconduct of that time rather than by later legislation. The court agrees. CT Page 18133

The court observes that in 1975 our legislature lowered the age of the legal capacity to consent to sexual intercourse from sixteen to fifteen years. State v. Perruccio, 192 Conn. 154, 164 (1984). Effective October 1, 1985, in apparent response to the Perruccio decision, the legislation raised the age of consent back to sixteen. P.A. 85-341. Therefore, throughout the relevant time period, the plaintiff, under § 53a-71, possessed the legal ability to consent to sexual intercourse. This proposition is derived from our Supreme Court's decision in State v. Perruccio, supra. While that case was a criminal matter, the peculiar facts and the legal issues raised by those facts extend its import to this civil case. In Perruccio a teacher had sexual relations with a fifteen-year-old student. Because the student had attained the age of consent under § 53a-71, the prosecution charged the defendant with risk of injury under § 53-21 rather than sexual assault. Section 53-21 retained the sixteen-year-old threshold even though the age of consent had been lowered to fifteen in § 53a-71. Id., 163.

The trial court in Perruccio had refused to instruct the jury that consent was a complete defense to the charge of risk of injury. Our Supreme Court reversed the trial court and ordered a new trial. Id., 165. In reaching its decision, the Supreme Court held that § 53a-71 not only defines what is illegal activity but also "outline[s] what constitutes corruption of the young" enforceable by other statutes such as risk of injury. Id., 164.

That decision referred to § 53a-71 as providing "the age of consent" to sexual activity for purposes beyond a mere violation of that statute. By amending § 53a-71, "the legislature clearly indicated that a person who had attained the age of fifteen was an adult capable of making an intelligent choice in matters relating to sex." Id. (emphasis added). Therefore, "forcible compulsion" was necessary to convict the defendant of risk of injury despite the fact that the defendant was a teacher at the girl's school. Id., 165.

The gravamen of the Supreme Court's reasoning in Perruccio is that the age contained in § 53a-71 establishes the threshold for lawful consent in Connecticut, generally, and, unless other statutory provisions restrict sexual activity between the parties, no sexual assault can occur without force. As a consequence, under § 53a-71, as it existed in 1984 and 1985, no sexual assault arose, absent forcible compulsion, merely from the position of authority a teacher exercised over a student or a coach over a player.

The plaintiff also contends that another clause of § 53a-71, as it read in 1984 and 1985, renders the movant's alleged sexual relationship with CT Page 18134 the plaintiff unlawful. Former subsection 53a-71(a)(3) prohibited sexual intercourse with a person younger than eighteen if the actor was "such person's guardian or otherwise responsible for the general supervision of such person's welfare." The plaintiff asserts that the relationship of coach to student meets this description. This assertion was rejected by our Supreme Court in State v. Burney, 189 Conn. 321 (1983), a decision announced shortly before the alleged activity in the present case.

In State v. Burney, supra, a sixteen-year-old girl had moved into the defendant's residence temporarily because she was experiencing trouble at school. The defendant, who exercised parental authority over her while she lived with him and his family, had unforced sexual intercourse with her. Id., 328. The Supreme Court ruled that the trial court erred in denying the defendant's motion for a judgment of acquittal. Id., 304. That Court stated that "the mere assumption by a third person of the temporary care of a minor [is legally insufficient] to bring that third party within the class of persons to whom the statute applies." Id., 326. The court further remarked that the phrase "general supervision" means "a greater degree of control and authority to direct than is implied by the word `supervision' standing alone without a modifier." Id., 328.

The Court in Burney concluded that "otherwise responsible for" was the "rough equivalent" to legal guardianship. Id., 327. Without a court order or the intent to relinquish parental responsibility by the mother, temporary residence in the care of the defendant failed to create the kind of relationship needed to trigger § 53a-71(a)(3). Id., 329.

The athletic instruction and temporary supervision exerted by a coach at practices and games pales in comparison to the parental surrogacy which the Supreme Court found insufficient to meet the statutory requirements in State v. Burney, supra. Thus, the existence, in 1984 and 1985, of former § 53a-71(a)(3) failed to deprive the plaintiff of the legal capacity to consent to sexual intimacy between herself and her coach.

Because the sexual activity alleged by the plaintiff was, absent force, lawful during the relevant time period, it is immaterial that several years later, by virtue of P.A. 94-221 and P.A. 02-106, our legislature reevaluated the relationship of teacher or coach to student and banned such conduct. To allow a party to sue for behavior that was lawful when committed and only made illegal years later would render advice of counsel useless and create confusion and chaos in our legal system and insurance industry. Ferrigno v. Cromwell Development Associates, 44 Conn.App. 439, 445 (1997).

For these reasons, the motion to strike the first count is granted.

Sferrazza, J. CT Page 18135

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