Using the law as a blunt object: Wisconsin DA threatens prosecution for teaching new sex ed class

Using the law as a blunt object: Wisconsin DA threatens prosecution for teaching new sex ed class

Recently, Wisconsin enacted a law (text here) which, among other things, requires the teaching of proper contraceptive use and sexually transmitted diseases to age appropriate students in a class titled "human growth and development". The law gives school districts the option to opt out of sex ed all together and allows parents to remove their children from the sex ed program in participating districts. 

Scott Southworth, The Distict Attorney of Juneau County, Wisconsin, recently sent a letter to officials in five school districts stating that teachers may be subjected to prosecution for a misdemeanor or a felony for teaching the human growth and development class.  He argues that teachers may be contributing to the delinquency of a child for teaching proper contraceptive use. The District Attorney claims that the new law “promotes the sexualization - and sexual assault - of our children," by encouraging sexual behavior. (View full text of the letter here. Nothing I can write will do it justice.)

The District Attorney’s letter reads as one part  "legal analysis" and three parts political propaganda, including gems such as: how the bill undermines parental authority, requires school districts to condone sexual behavior, and gives the "contraceptive industry" access to students.  The letter also implies that the schools will be subject to civil liability (speaking hypothetically of course, since a District Attorney cannot give advice regarding civil liability), and informs the the district of how representatives of Juneau County voted on the bill (they voted against it).  These statements are wholly unrelated to the District Attorney's function as a prosecutor.

For District Attorney Southworth to use the tremendous power and responsibility that goes with his office to threaten criminal prosecution for an entirely lawful activity that happens to be adverse to his political agenda is unsettling to say the least. Furthermore, his threats are completely baseless.

First and foremost, you can’t prosecute someone for doing something legal. You don’t need a law degree to figure that one out. Here, the Wisconsin Legislature passed and Governor Doyle signed a law which states that teachers must teach contraceptive use if a sex ed program is approved by the school district.

Second, the District Attorney curiously states that a “fact-based” discussion of what contraceptives can and cannot do would not result in criminal liability. (p. 2, ¶ 2.) However, teaching how to properly use contraceptives somehow encourages and advocates sex. It seems like District Attorney didn’t read the bill, or he wants to be the sole arbiter of what “fact based” means.

Wisconsin sex ed programs must present “medically accurate” information – i.e. supported by peer reviewed research, and endorsed by the American Medical Association, the American Public Health Association, or the American Academy of Pediatrics. See Act 134, § 3, (b). I can’t think of anything more “fact-based” than that. Also, the statute requires stressing the value of abstinence and “[t]he health benefits, side effects, and proper use of contraceptives.” Id. at § 4, (5)-(6). The program advanced by the bill does exactly what the District Attorney claims will not result in criminal liability – it gives students unbiased, fact based information on what contraceptives can and cannot do.

The District Attorney concludes his letter urging the Juneau County administrators to temporarily withdraw from the human growth and development curriculum.  If the district adopts the human growth and development curriculum, the District Attorney ends with a warning: "the mandates of Act 134 risks the safety of our children and the careers of our teachers -- something I implore you not to do."

I understand teaching sex ed is a hotly contested issue. However, the debate should be conducted between constituents and their legislators and between the legislators themselves. For an elected official who has the power to charge individuals with a “crime” to use his authority as a bully pulpit and as a method of intimidation is unacceptable.

Thank you,

Grant S Smith, Esq., Grant@aschemansmith.com
(B) 612.217.0077 (C) 651.357.5990 (F) 651.344.0700
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Please remember that the interpretation and analysis presented here is not intended to be legal advice.  If you are seeking legal advice please contact us for a free consultation and an actual examination the issues that your case may present.



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