Interestingly enough, the court’s decision (warning: PDF) talks about consent: “The record reveals that A.D. was an adult when she engaged in a sexual relationship with Paschal, and the State does not dispute Paschal’s contention that the sexual relationship was consensual” but that “Talbert has no liberty interest to engage in sexual activity by using his position of trust and authority.” Shocking to find a ruling that seems pretty well thought out.

Everyone who accepts someone else’s consent to sex is gambling that they judged that consent accurately, with the other person’s well-being as the stakes. The odds of their being right vary with every situation, with every collection of verbal and nonverbal signals from the other person, with every set of social/observational skills (and willingness to use them) of the person doing the analyzing. And presumably there’s a point at which the law can step in and say, “In this situation you’re taking too high of a risk of being wrong, and doing the other person a disservice by taking their lack of refusal at face value.”

There are people who can and do and would freely consent to sex with a person in authority over them if that person’s behavior toward them is non-offputting. There are people who can and do freely consent to behavior other people would find distressing or traumatic, including illusions of abuse of power. I don’t think what people can or cannot consent to is the issue here, simply because it’s so subjective and because it’s so inherently their individual right to give consent or withhold it as they choose.

I think the issue here is the higher-authority person’s responsibility to tread very, very carefully to avoid misusing that power. Authority over someone and the threat of its misuse tend to strongly muddle communication in both directions. An invitation can be read as a demand, coming from higher in the chain of command; compliance with that can easily be misread as consent, even enthusiastic consent. The appearance of consent can be demanded, or hesitance/dislike/distress/lack of enthusiasm can be deliberately misread. There is often no way to be certain that there’s not a command or a threat hidden in a request, and no way to be certain that even the most enthusiastic expressions of content aren’t just a performance by a subordinate who feels the need to tell the other person what zie wants to hear.

Perhaps there are ways to establish that consent is real, at least beyond the same reasonable doubt that is prevalent in any sexual interaction (although, to be fair, the law is not exactly good at this); it would be good for the legal code to specify how this can be accomplished. Certainly, the standards for it should be well-publicized and written to avoid any leeway on the teacher’s end for intentional misunderstandings. A model of enthusiastic, explicit, and affirmative consent standards and a “if you’re not sure, then don’t” warning would be absolute musts. (I’d love to see EE&A consent standards be adopted across the board of legal sexual activity, personally, but I doubt that’ll happen anytime soon; here, though, they’re all the more important.)

But I think it important that as much discussion of this issue as possible be focused on questioning the higher authority’s ability to identify consent, rather on the lesser one’s ability to give it. To do otherwise, to competent adults, is inherently a dismissal of agency (and an agency that is already not always accepted).