When A Hug Is More Than A Hug

The Iowa Supreme Court affirmed the conviction of a teacher for prohibited sexual conduct

This case requires us to determine whether hugs between a school employee and a student can constitute prohibited “sexual conduct” under Iowa Code section 709.15(3)(a) (2015). Wickes appeals his conviction on one count of sexual exploitation by a school employee under Iowa Code sections 709.15(3)(a)(1) and 709.15(5)(a). Wickes challenges the district court findings that his hugs with a student constituted “sexual conduct” under Iowa Code section 709.15(3)(a)(2) and that the State provided sufficient evidence to show he engaged in a pattern, practice, or scheme of conduct to engage in sexual conduct with a student. Wickes also forwards other claims on appeal. For the reasons set forth below, we affirm the judgment and sentence of the district court.

The defendant taught high school social studies and communicated with the student on Facebook messenger

Between August 21 and October 5, Wickes and A.S. exchanged approximately 638 pages of messages on Facebook with one another, with many of these pages containing multiple exchanges between them per page. These daily messages took place at all hours of the day, sometimes beginning early in the morning and often ending early the next morning. As their relationship progressed, Wickes and A.S. began to openly share intimate details of their lives. Wickes frequently discussed his marital issues with A.S., including his sexual frustrations with his wife. They also discussed his ultimate decision to leave his wife and children.

Throughout these discussions, Wickes made clear that part of his marital problems stemmed from his desire for more cuddling and physical contact with his wife. For example, Wickes stated, “[H]ugs, cuddling and laying together are so important to me.” Wickes also told A.S. that he had previously complained to his wife about the lack of affection and sexual intimacy in their marriage. He made statements such as “I’m a guy that loves to cuddle and show affection”; “I don’t need to be seduced after this long of a ‘dry period’ ”; and “I NEED AFFECTION, I’m not saying the booty kind . . . well that too . . . but I freaking am crazy to just feel like [my wife] would like to hold my hand or sit beside saying, “[Y]ou’re not crazy for wanting those things. It’s part of a relationship. It’s a big part.” Wickes replied, “Could you turn 30 tomorrow lol.”

Further, Wickes used these discussions to flirt with and encourage A.S. into a more intimate relationship with him. Initially, he encouraged A.S. to rely on him emotionally. After Wickes reviewed A.S.’s paper describing her move from the home of one parent to the other, Wickes made statements such as “I didn’t know much about why you left. Sounds like it was pretty rough. You should share more with me sometimes if you ever want to”; “Hugs and high fives Monday”; and “Don’t hold it all in. That just leads to more depression and anxiety. I’m always available.” Wickes subsequently continued to encourage A.S. to rely on him for support in the form of conversations and hugging. For example, when A.S. said, “I know personally I tend to shut down after I open up to someone,” Wickes responded, “So can I expect you to shut down and pull away now? Better not.”

A.S. and Wickes would both message each other asking about when they would get their hugs from one another. The pair engaged in hugs on an almost daily basis. In addition to their conversations and testimony about the hugs, the evidence of these interactions includes two photographs of Wickes and A.S. embracing—one at the Camanche High School prehomecoming bonfire and one at the homecoming dance. From September 16 until his last Facebook conversation with A.S. on October 5, Wickes made a plethora of statements to A.S. about how sexually attractive he found her and his desire to be in a romantic relationship with her. For example, on September 20, Wickes messaged A.S., “I’m going to cross over to the creeper side a moment and tell you. You are hot. And pretty[;] kind of a rare combo.” This comment came after Wickes had recently seen A.S. at Walmart, they had hugged, and he followed up on their in-person exchange by telling A.S., “I’m glad I just got to touch you[.] OMG[;] touch hug you lmfao.”

The messaging continued and

On October 4, Wickes separated from his wife and moved away from the marital residence. Later that night, Wickes and A.S. met at Walmart to give each other a hug. Following their physical encounter, they continued to converse with one another that evening on Facebook. Wickes mentioned to A.S. that she left him with a “wonderful perfume smell.” Wickes told A.S. that he was jealous of her boyfriend because “He’s got a shot with my perfect person.” He further told A.S., “I’ve been walking alone for so long helping who I could along the way, to realize I was never going to meet someone that saw me. And then bam it’s you.” The two conversed about their romantic feelings for one another, and Wickes posed A.S. a “hypothetical” question. He asked her if she would like to take their relationship further despite their age gap after she graduated and turned eighteen if his marriage did not work out. He also asked her whether she could “really be happy with a guy that’s 36[,] divorced, and has 3 kids.” A.S. replied, “Honestly yes. There’s such a connection. And I love kids.” Soon after, Wickes told A.S., “I’ll just say it. I love you. I never meant for this [to] happen[.] [I]t just did.” After A.S. acknowledged she felt the same way, Wickes told her, “I’ve only hugged you and chatted with you and I feel completely tied to you. When my phone light blinks green[,] I know it’s a message from you and I get so excited.”

This conversation continued early into the next morning, and it became increasingly sexual. Wickes told A.S., “My fantasy was laying in your lap listening to [music.]” After A.S. told Wickes about how she liked to cuddle, Wickes responded, “Booty touches me and it be [M]arvin [G]aye . . . for all of 5 seconds at this point.” He also explained to A.S. that his wife had previously told him “she wasn’t enjoying [sex] because . . . she didn’t get what she needed.” He declared that the “lack of closeness sure does kill the [sex] drive.” Subsequently, Wickes described how he liked to give sensual back rubs by “lightly caressing with finger tips and . . . spelling out words.” He told A.S. that he had “magical fingers,” and that he would “trac[e] along the back side of the leg and circles around the knee.” Following this exchange, Wickes asked A.S., “Do you delete these messages? I think I’d be killed if your dad found them.”

At that point, the family became aware of the situation

On October 6, the principal and school superintendent met with Wickes, who told them his conversations with A.S. had become flirty and turned into “conversations like boyfriend and girlfriend would have.” Wickes told them about his hugs with A.S., as well as his out-of-school encounters with her. However, the principal and superintendent were unable to view the Facebook messages because Wickes told them he had deleted them and his smart phone had been destroyed. The school district placed Wickes on administrative leave. Wickes resigned from his teaching position on November 13.

He was convicted at a bench trial.

The court

Of critical importance in our analysis is the context and circumstances that surrounded the physical contact—the hugs—that are at issue here. This context begins with Wickes initiating the Facebook messaging with A.S. It continues with the scenario of a 36-year-old teacher incessantly messaging a 17-year-old female student to describe intimate details of his marriage and his sexual frustrations. This context informs our analysis of what resulted in daily or more often hugs between Wickes and A.S. It is important to note that nothing should prohibit teachers from hugging students for reassurance, comfort, or in congratulation without putting themselves at risk of being charged with the crime of sexual exploitation. But on this record, it is clear from the voluminous messages and their content discussing the hugs and his attraction to A.S., Wickes’s intention with these hugs went beyond mere reassurance and support for A.S. Rather, the abundance of messages to A.S. about how attractive he found her, his desire to be in a more intimate relationship with her, and how he was in love with her, linked his sexual desire toward A.S. with the hugs they exchanged.

Likewise, the photos of A.S. and Wickes hugging at the school bonfire and homecoming dance show that these hugs went beyond simple, brief hugs for reassurance or comfort. These photos show the pair in a close embrace, not a mere hug. For example, in one of the homecoming photos, A.S. and Wickes are engaged in a full-frontal hug in which the pair are making chest-to-chest contact, A.S. has her arms wrapped around Wickes’ neck, and Wickes has his arms fully wrapped around A.S.’s waist as they pose for the photo. Consequently, in the context of the multiple messages with A.S. as a whole, and in combination with the hugging, there is sufficient evidence that the hugs constituted sexual conduct with A.S. as opposed to an ordinary hug between a teacher and student intended to comfort and reassure the student…

The ever-changing technology that gives school employees the opportunity to easily communicate with students through mediums that allow for more discreet communications—like the use of Facebook Messenger in this case—presents school employees with a legion of evolving methods by which they can potentially sexually exploit students. The legislature rightly acknowledged as much by declining to limit its definition of “sexual conduct” to specific conduct and, instead, sought to include those ways in which a school employee sexually exploits a student by causing them physical or nonphysical harm.

The court rejected other claims and ipheld the five-year prison sentence.

The Clinton Herald reported on the case. (Mike Frisch)