Texas Court of Appeals Rejects Fundamental Right to Consensual Sex

By Timothy Ramos

This article appears in LGBT Bar NY’s March edition of “LGBT Law Notes.”

He was a 17-year-old boy who was old enough to consent to engage in sex under state law. She was teacher who worked at his high school. Can we make it any more obvious that questionable choices were made? On January 31, 2018, the Texas 13th District Court of Appeals affirmed the conviction of Tanya Ramirez — a former teacher at King High School — for two counts of engaging in sexual intercourse with a student in violation of § 21.12(a)(1) of the Texas Penal Code. Ramirez v. State, 2018 Tex. App. LEXIS 873, 2018 WL 637367 (Tex. App. Jan. 31, 2018). Writing for the court, Judge Nelda V. Rodriguez rejected Ramirez’s contention that the penal statute unconstitutionally infringed upon her fundamental right to engage in consensual sex.

Analyzing two landmark decisions by the U.S. Supreme Court, Obergefell v. Hodges,135 S. Ct. 2584 (2015), and Lawrence v. Texas, 539 U.S. 558 (2003), the court held that the U.S. Constitution neither recognizes nor protects a “fundamental right” of individuals to engage in consensual sex. Thus, the court did not have to determine whether §21.12(a)(1) could survive a strict-scrutiny standard of review. It is particularly interesting that Judge Rodriguez relied on cases concerning same-sex marriage and homosexual sodomy, when the case at hand involved sexual intercourse between a female teacher and her 17-year-old male student. Together, Obergefell and Lawrence provide courts guidance on how to identify and treat constitutionally protected fundamental rights in a vast array of cases.

Judge Rodriguez’s opinion was scarce on the factual details leading up to Ramirez’s arrest, and even concealed the identities of two male students involved with Ramirez; however, the case has garnered considerable media coverage over the years. Most notably, Ramirez and Tristian (the student involved in Count 1) sat down for an interview with Dr. Phil! From that interview, one would learn that Ramirez and Tristian texted each other for almost four weeks before he came to her house at 3 A.M. on May 30, 2014. Ramirez was fully aware that Tristian was a student at her school; yet, she justified their relationship by asserting that this was a consensual act between adults and that she did not specifically teach or coach Tristian. Tristian recorded a video of their encounter, and shared it with 11 other students. Afterwards, Ramirez turned herself over to the police.

On September 25, 2014, a grand jury indicted Ramirez for one count of engaging in sexual intercourse with a student in violation of § 21.12(a)(1) of the Texas Penal Code. One year later, the grand jury amended the indictment to include a second count when authorities discovered that Ramirez engaged in sexual intercourse with another student. By January 11, 2016, Ramirez pleaded guilty to Count 1 and no contest to Count 2. As part of her plea agreement, Ramirez surrendered her teaching license so that she would not have to register as a sex offender. The trial court placed Ramirez on community supervision for seven years and assessed a fine of $4,000 and restitution of $400.

On appeal, Ramirez argued that §21.12(a)(1) infringed upon and criminalized her constitutionally protected fundamental rights guaranteed by the Due Process Clause of the 14th Amendment of the U.S. Constitution. Specifically, Ramirez contended that the right to consensual sex is a privacy right similar to the fundamental rights of marriage, procreation, contraception, family relationships, child rearing, and education. Because § 21.12(a)(1) allegedly infringed on her fundamental right to consensual sex, Ramirez contended that the court must analyze the statute under a strict-scrutiny standard of review and conclude that the statute failed to take the least restrictive means available to carry out the state’s interest in “preventing the sexual exploitation of Texas school children.”

Judge Rodriguez first rejected Ramirez’s assertion that the U.S. Supreme Court recognized a constitutionally protected fundamental right to consensual sex in Obergefell v. Hodges. The Obergefell Court explained that the 14th Amendment’s Due Process Clause protects fundamental liberties concerning “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” While history and tradition initially guide the inquiry of whether or not a fundamental right exists, they are not strictly determinative of the issue; for instance, while there has been no longstanding history or tradition of same-sex marriage, the right to marry has been repeatedly recognized as a fundamental right protected under the Due Process Clause. Applied to the case at hand, Judge Rodriguez pointed out that Obergefell specifically reiterated a fundamental right to marry, but did not recognize a fundamental right to consensual sex. Furthermore, the judge held that, unlike the fundamental right to marry, the right that Ramirez asserted: (i) does not define personal identity and beliefs; (ii) is not so fundamental that the State must accord it respect; and (iii) is not implicit in the concept of ordered liberty.

In support of the court’s determination that there is no fundamental right to consensual sex, Judge Rodriguez then discussed Lawrence v. Texas, in which the U.S. Supreme Court struck down Texas’s penal statute that criminalized homosexual sodomy. In Lawrence, the Supreme Court recognized that the 14th Amendment’s Due Process Clause affords consenting adults the right to engage in private sexual relationships free from government intrusion; however, Judge Rodriguez pointed out that the Lawrence Court referred to this right as a “liberty interest” rather than a fundamental right that is entitled to strict-scrutiny review. Thus, the Lawrence Court struck down Texas’s sodomy statute under rational-basis review because the court found that the statute furthered “no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Following Lawrence — and a number of other Texas appellate courts that have concluded that § 21.12(a)(1) does not implicate a fundamental right — Judge Rodriguez then finally rejected Ramirez’s assertion that the penal statute should be subject to and struck down under strict-scrutiny review.

As the Lawrence Court inferred, the liberty interest asserted by Ramirez does not extend to “sexual conduct involving…persons who might be injured or coerced or who are situated in relationships were consent might not be easily refused.” While Ramirez continues to publicize her belief that her conduct should not be criminalized because the students involved had reached the state’s age of consent, she fails to consider that her position as a faculty member put her in a place of perceived power and influence that students would be hesitant to dismiss. Her lack of remorse is specifically evinced by the fact that, after she was convicted in January 2016, Ramirez filed a lawsuit against Tristain’s mother for allegedly defaming Ramirez to various media outlets.