WINDOM, Presiding Judge.
The State of Alabama appeals the circuit court's decision holding § 13A-6-81, Ala. Code 1975, unconstitutional as applied to David Thomas Solomon and Carrie Cabri Witt and dismissing the indictments against those individuals. For the reasons that follow, this Court reverses the circuit court's decision.
Section 13A-6-81(a) provides:
"A person commits the crime of a school employee engaging in a sex act with a student under the age of 19 years if he or she is a school employee and engages in sexual intercourse as defined by Section 13A-6-60(1) or deviant sexual intercourse as defined by 13A-6-60(2) with a student, regardless of whether the student is male or female. Consent is not a defense to a charge under this section."
The indictment against Solomon alleged:
"David Thomas Solomon, whose name is to the Grand Jury otherwise unknown, a school employee, did engage in a sex act or deviate sexual intercourse with [H.S.] a student under the age of 19 years, in violation of Section 13A-6-81 of the Code of Alabama."
(C. 132.) The indictment against Witt alleged:
"Carrie Cabri Witt, whose name is to the Grand Jury otherwise unknown, a school employee, did engage in a sex act or deviate sexual intercourse with [A.S. and D.M.] student[s] under the age of 19 years, in violation of Section 13A-6-81 of the Code of Alabama."1
(C. 8.)
Both Solomon and Witt filed motions and briefs in the circuit court asking the court to declare § 13A-6-81 unconstitutional as applied to them and to dismiss the indictments against them. (C. 92-102, 142-56.) Specifically, Solomon and Witt asserted that, as applied to them, § 13A-6-81 is unconstitutional under Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and the Due Process Clause because it "criminalizes consensual sexual activity conducted in private." (C. 95.) Solomon and Witt argued that the statute is overbroad and unconstitutional. They asserted that the State has no legitimate interest in regulating consensual sexual acts. They further argued that § 13A-6-81 "violates Equal Protection in that it criminalizes a personal relationship between two consenting parties that is not criminalized between other similarly situated parties."2 (C. 100.)
On April 4, 2017, the circuit court held a hearing on Solomon's and Witt's motions to declare § 13A-6-81 unconstitutional. At the hearing, Witt argued "that the statute is extremely overbroad to the point that it's unconstitutional." (R. 4.) Witt asserted:
"The statute does not specify a teacher/student relationship. It simply states student and school employee, which would make the statute apply to anybody across the board from the top all the way down to the very lowest janitor or groundskeeper cutting the grass."
(R. 4-5.) Witt argued that § 13A-6-81 fails to restrict its application to school employees who have some position of authority over the student; thus, she "can ... come up with just dozens upon dozens of scenarios which might make this apply, which obviously is an absurd application of this." (R. 6.) Witt then argued that "[b]ecause this is so overbroad, Your Honor, the statute is just by its very nature unconstitutional." (R. 8.) Witt also asserted that § 13A-6-81 is unconstitutional under Lawrence v. Texas because it regulates morality.
In response, the State argued:
"The people of Alabama have spoken through their elected representatives that some people cannot consent to sex, even though they may be otherwise of legal age with certain classes of individuals. The teacher -- the school employee/student sex prohibition is not the only such statute. For example, Alabama Code § 14-11-31 makes it unlawful for jailers or correctional officers or probation officers to have sex with people under their care and supervision. Consent is not an issue. And similarly we have § 13A-13-3, incest, consent is not a defense.
"The reason for this if you go back and take a good -- one of the reasons for these prohibitions is to prevent victimization of persons who have no real ability to refuse sexual advantages from someone who is in a position of authority and power over them. That person has a duty to provide care and supervision and the victim, and we're talking victims here, is expected to obey those people without question. And, indeed, in school context the victim is expected to look up to that individual as a role model. Janitors can turn you in as a student. We expect the student to obey any school official when it comes to obeying school rules.
"....
"Now, the Alabama Code requires that with very few exceptions every child between 6 and 17 has to attend school. They're not there necessarily by choice. In society in general and parents in particular must be confident when they send their sons and daughters to school every fall and they meet a new teacher the teacher is not replenishing their dating pool.
"Now, the Defendant's reply is Lawrence v. Texas, but Lawrence v. Texas specifically stated that its holding did not apply to minors. The present case does not involve minors. Verbatim quote, ‘In Alabama we classify persons as children at different ages for different purposes’: the age you can drive, the age you can drive unrestricted, the age you vote, purchase cigarettes, purchase alcohol, and, yes, the age at which you can have sex with school personnel. Those distinctions have a rational purpose, and in the case of the teacher's right to have sex with 16 to 19 year olds must be subordinate to the social necessities of running a school system.
" Lawrence v. Texas talks about people, not minors. We've established that Lawrence does not apply to minors, and it also talks about Lawrence does not involve persons who might be -- who are situated in relationships where consent might not easily be refused. Everybody has that special teacher in their background who helped them make serious life decisions that have followed them into adulthood. We must be confident that our teachers are nurturing our students, not victimizing them.
"Now, if we allow such dating then you're really talking about you have break-ups, you have jealousy, you have potential angry parents who may or may not get violent. Students have to be on constant guard because they don't know when a teacher is singling them out for specialized treatment or school personnel is singling them out for special treatment, that they're not being groomed for sexual activity as opposed to being educated. And it also gives the teachers and school personnel a safe harbor to reject a student advances without crushing the student's ego. These are all very reasonable and rational purposes for a statute that forbids school employees from having sex with teachers or other school personnel.
"....
"Now, overbreadth is a facial challenge and the burden is on the Defendant to show the State that that state statute is invalid in all applications. And to do that at the very least they would have to show at trial and that would be necessary to go all the way to trial, that portion of it, in order to determine whether or not this is the behavior that the legislature intended to address and no farther.
"Yes, you can create hypotheticals wherein you can make virtually any law appear overbr[oad]. It's a magician's trick. For example, a pediatrician conducting a routine physical examination could theoretically be charged with violating a child molestation statute. A hypothetical could be created to make a very plain and constitutional statute appear otherwise.
"They suggest that the sixteen-year-old student can consent to sex with a school employee. That's not so. We've demonstrated the statute says you can't consent. Yes, they can have sex with other adults, but the interaction with other adults is generally not in an environment where they're expected to be, to persons they are expected to trust, and persons that are expected to obey.
"All students are vulnerable to persons with power and influence in some way, shape, or form. It's important for us to remember the function of a school. The reason we entrust school employees with our children and we must have some confidence that those employees will act in a responsible manner, and it's not unreasonable to criminalize what is essentially the rape of a nonconsenting individual."
(R. 11-17.)
On August 8, 2017, the circuit court entered the following order:
"The cause comes before the Court on the motions for the Court to hold Ala. Code [1975] § 13A-6-81(a) [,] unconstitutional filed by the Defendant[s] [Solomon and Witt]. The State filed ... response[s] to the motion[s] and the parties appeared before the Court for a hearing on the motion[s] on April 4, 2017. Upon consideration of the motions, the arguments of counsel, the record in each case, and the relevant legal authorities, it is hereby ORDERED, ADJUDGED, and DECREED as follows:
"1. These cases are before the Court strictly on the allegation in the indictments, no testimony or evidence was taken at the hearing. The indictments make allegations that are identical in all respects excepting the parties to each charge: ‘...[the Defendant,] a school employee, did engage in a sex act or devia[nt] sexual intercourse with [the victim,] a student under the age of 19 years, in violation of Section 13A-6-81 of the Code of Alabama ....’ That is the complete allegation. Accordingly, the Court cannot determine (1) whether the parties were consenting adults (2) whether the school employees were in any
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