Disclaimer: I am not a lawyer (I am a law student). The text below contains only my understanding of the applicable law. It has nothing whatsoever to do with your particular situation. Do not assume you can make any decisions based on this text. I do not intend this text to apply to anyone’s situation. This text is not legal advice. I am not qualified to give legal advice anyway. The purpose of this text is to encourage debate and create awareness of certain criminal offences. Please consult a lawyer if you need legal advice or help with your particular situation.

Our society is obsessed with sex. Not just in a dirty sense. We are probably as much into sex as we are afraid of it, and one proof of our fear of sex is in the criminal code. Sexual assault, sexual interference, sexual exploitation, invitation to sexual touching are serious crimes in our legal system. We want to punish sexual offenders because we want to protect ourselves and especially our women and children. Traditionally, the predators have been men, but more and more often the police arrest women for sexual crimes. I wrote about a case in Georgia where a trial court gave a female teacher ten years for a mutual love affair with a girl-student. The girl reached the age of consent but the court ignored it because the older woman was her teacher. A few days ago, an Ontario judge sentenced a female teacher for a love affair with a student. If the older women didn’t plead guilty, this case would be almost identical to the case in Georgia, except for the brutally harsh sentence. But the intricate details of the Ontario case are different enough to make this story a lesson for all adults—not just for teachers.

Leslie Merlino was a popular French and Spanish teacher at the Streetsville Secondary School in Mississauga. She became especially close to one of her female students in 2006. The first illicit contact between the student and the teacher was described as “stroking of the hair.” There was a school trip to Spain that same year where the two women seemed to have grown even more attached to each other. Eventually this couple attracted someone’s attention because the police arrested Merlino in October 2006. She never returned to teaching after that arrest and officially resigned six months later. The two women stopped seeing each other after Merlino’s arrest in 2006. But according to press reports, in January 2007, the girl went online to look for Merlino. She found her former teacher on MSN. Since then, the two became close again: they talked on the phone, met online and in person. As 2007 passed, they “held hands, kissed and fondled each other.” Merlino hadn’t been teaching since October 2006.

Meanwhile, Merlino’s October 2006 arrest slowly found its way through the justice system. It doesn’t look like the police had more than “stroking of the hair” to go on. The only charge laid by September 14, 2007 was assault, a non-sexual offence. Merlino pleaded guilty. The court ordered her not to contact the young woman and gave an 18-month probation. But by that time, the two were pretty much a couple, and soon after Merlino’s conviction, she and her lover spent a weekend in Quebec City together. Merlino had no idea the police was watching her. She was arrested again on October 12, 2007 as the year of her closest relationship with the girl was drawing to an end. She spent about two months in jail before getting bail. Her trial wasn’t scheduled until almost two years later on September 14, 2009. But the trial did not take place as Merlino pleaded guilty again.

So a few days ago Merlino was convicted for the second time. Apart from breaching court orders and terms of her probation, she pleaded guilty to sexual exploitation. The purpose of this offence is to protect young people between 16 and 18 years of age. You are guilty of this crime, if you get into pretty much any sexual contact with a young person who is in a special relationship of trust or dependence with you. The idea is to protect impressionable high-school-aged teenagers from sexual advances by older people in a position of power. Teenagers under 18 are usually dependent on or subject to adults’ authority. The law takes notice of that and forbids adults to take advantage of their power in a sexual way. And the law goes so far as to presume that any sexual contact in that context is sexual exploitation. If you are in a position of trust, authority, or influence over a young person, pretty much any sexual interaction between you and the teenager is automatically sexual exploitation. And you are guilty regardless of whether the adolescent was with you voluntarily or not. In a sexual exploitation charge, consent is not a defence.

One of the obvious groups this law targets is teachers. Teenagers spend most of their time with them. They depend on them. Often they are afraid of them. Teachers give them grades and reference letters, and they can put students on the spot in class in front of their peers. Teachers can also be objects of admiration, love, even obsession by students. Teachers are usually older and more experienced. All of these facts go into consideration when a judge looks into a suspected exploitative relationship. Specifically, the criminal code allows the judge to take into account:

(a) the age of the young person;
(b) the age difference between the person and the young person;
(c) the evolution of the relationship; and
(d) the degree of control or influence by the person over the young person.

But the judge can take other things into account too. Teachers often fit this description like a textbook fits a school bag. That’s why, genuine love or not, voluntary or not, passion or not—a kiss on the lips, fondling, touching, even a teacher’s invitation to do any of the above, and many other acts, however small, will cause the law to come down hard on the teacher.

So case closed on Merlino? Not so fast. She was not the teenager’s teacher when the two became lovers. Merlino stopped teaching in October, 2006. But her conviction covers 2007—the year of the Quebec City trip. Merlino’s former student was around 18 that year—the cut-off age for the sexual exploitation offence. It’s not clear what influence Merlino had over the young woman, but she definitely couldn’t give her a bad grade or humiliate her in front of the class. A Toronto Star reporter saw the student’s Facebook page, where she wrote with self-reflection: “Sometimes, I freak out, that I made a mistake. And I shouldn’t be with the person I’m with. Other times, I don’t know how we’ve managed to spend so much time apart.” It’s true that the relationship had begun when Merlino was her teacher. That as well as an almost 20-year difference in age could work against Merlino at trial. But the two stopped seeing each other after the first arrest and Merlino’s departure from the school. They got back together only after the younger woman found Merlino on MSN.

Merlino seems to have had a fighting chance at trial, but she deliberately avoided it by pleading guilty. The charges against her were never tested at trial. Why did Merlino gave in without struggle? Sexual exploitation is a grave offence with strong stigma. Merlino will be on the Ontario sex offender registry for 20 years, and who knows how long her DNA will stay in the federal databanks. She may have difficulty travelling abroad for the rest of her life. She may have a hard time finding a job. If Merlino waited only a few months before restarting the relationship with the younger woman, she would be perfectly innocent in the eyes of the law. Is the punishment proportionate to her crime? Why didn’t she fight in court? Often plea bargains help avoid more serious charges. But no judge or jury would have likely found her guilty of sexual assault, for example, without proof that she had used her authority to “induce” the girl to become her lover. Proving sexual exploitation is easier, because it does not require proof of “inducing.” And sexual assault is not really graver than sexual exploitation in this context. I can only wonder if Merlino got a more lenient sentence in exchange for her guilty plea.

Perhaps she wanted to protect her teenage lover from the publicity of the trial. The girl is now 20. Her age would probably not shield her from testifying, although I don’t know if the judge could force her to testify. According to the media, the girl refused to submit a victim impact statement or appear at the hearing when Merlino pleaded guilty. She clearly did not co-operate with the prosecution. Merlino could have very well sacrificed herself for her lover.

The moral of this story for everyone is simple: beware of the sexual exploitation offence. You can be a potential victim, if you are between 16 and 18. You can be a potential perpetrator, if you are in a relationship of trust, authority, or control with a young person. Don’t just assume that 16 is an age of consent. If you are a teacher, a doctor, a lawyer, a guardian, etc., the relevant age in your relations with younger people is higher. Always talk to a lawyer if in doubt, and don’t fall in love with teenagers. The law frowns upon it.