The attorney for a former high school basketball coach accused of raping a female student is challenging the state's age of consent law and asking a judge to dismiss the charges against his client.
Tyrone Lamont Nash, 33, of Oklahoma City, is charged with five counts of second-degree rape and five counts of forcible oral sodomy. The former Western Heights High School coach was arrested Sept. 9 after the student, 16, told police she had been having sex with a teacher.
Attorney David Slane filed a motion in Oklahoma County District Court on Tuesday asking the trial judge in Nash's case to overturn statutes for second-degree rape and oral sodomy as they apply to school district employees.
“I'm not saying that it's OK for teachers to have sex with students,” Slane said outside the court clerk's office. “What I'm saying is this statute is poorly written and unconstitutional.”
Under Oklahoma law, the age of consent for sexual intercourse and oral sodomy is 16, unless the acts are committed by a school district employee.
Slane contends the law should be rewritten by the Oklahoma legislature to apply only to teachers and other school employees who wield some sort of power, control or influence over a student.
Nash, he said, was not the girl's teacher. The girl was a volunteer helper for the basketball team Nash coached, the attorney said.
“The reason the law is unconstitutional is that if two people are of age of consent, that means they have a constitutional right to privacy, which includes sexual relations,” he said.
The girl told investigators she had sex with a teacher at her school 15 to 20 times, most recently in March 2011.
Slane said the girl testified at a January preliminary hearing for Nash that she consented to all of the acts and acknowledged taking his phone and initiating contact with him.
The attorney cited a March 29 decision by the Arkansas Supreme Court to overturn a man's conviction on four counts of second-degree assault with a student who was 18, saying both of them had a constitutional right to privacy because they were consenting adults.
“They basically ruled that the state couldn't prohibit them from having sex,” Slane said. “They stuck down the law as it was written because it was too broad.”
Nash, who is free on $50,000 bail, resigned from Western Heights last year. His trial date is set for Oct. 29. Slane said he expects Oklahoma County District Judge Jerry D. Bass to rule on the motion by the end of September.
Both sides are expected to appeal the judge's ruling to the court of criminal appeals, which could delay Nash's trial indefinitely.
“Statutes passed by the legislature are presumed to be constitutional and like every other motion filed by criminal defendants we'll argue this one in court,” First Assistant District Attorney Scott Rowland said Tuesday.