The Court presented the allegations:
A.W. testified that he had observed D.B. and M.G. engage in anal sex. A.W. testified that D.B. “bribed” M.G. with video games to engage in sexual conduct. Both A.W. and M.G. stated that the sexual conduct was always initiated by D.B. and that D.B. would either bargain with, or use physical force on, M.G. to convince M.G. to engage in sexual conduct.
According to A.W., D.B. and M.G. did not engage in sexual conduct until M.G. himself agreed to the activity. D.B.’s father testified that while D.B. was significantly bigger than other children his age, he was not an aggressive child and he never used his size to bully or intimidate other children.
In this case a 12 year old boy accused of sexual conduct with a boy who was 11 years old. In this case, the prosecutor hit the boy with nine — that’s right, nine — counts of statutory rape. The case raised question over whether the charges were magnified due to the homosexual element.
Like many such statutes, there is no consideration of the age of the actor. R.C. 2907.02(A)(1) provides:
“No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
. . .
(b) The other person is less than 13 years of age, whether or not the offender knows the age of the other person.”
This is an “as-applied challenge” meaning that “the statute in the particular context in which he has acted, or in which he proposes to act, [is] unconstitutional.” Ada v. Guam Soc. of Obstetricians & Gynecologists 506 U.S. 1011 (1992) (Scalia, J., dissenting).”
The Court found that the first unconstitutional element was vagueness due to the uncertainty of who would be charged in such cases:
“As applied to children under the age of 13 who engage in sexual conduct with other children under the age of 13, R.C. 2907.02(A)(1)(b) is unconstitutionally vague because the statute authorizes and encourages arbitrary and discriminatory enforcement. When an adult engages in sexual conduct with a child under the age of 13, it is clear which party is the offender and which is the victim. But when two children under the age of 13 engage in sexual conduct with each other, each child is both an offender and a victim, and the distinction between those two terms breaks down. . . . The prosecutor’s choice to charge D.B. but not M.G. is the very definition of discriminatory enforcement. D.B. and M.G. engaged in sexual conduct with each other, yet only D.B. was charged.”
The Court also found an equal protection violation:
Because D.B. and M.G. were both under the age of 13 at the time the events in this case occurred, they were both members of the class protected by the statute, and both could have been charged under the offense. Application of the statute in this case to a single party violates the Equal Protection Clause’s mandate that persons similarly circumstanced shall be treated alike.
Here is the entire decision: 2011-Ohio-2671
This analysis can certainly be challenged under existing case law, but it is an important effort by state judges to address a serious abuse of these laws. We have seen very troubling cases emerge where boys are labelled for life as sex offenders due to consensual sex with other minors. See this story (citing other cases).
Source: Cleveland
Jonathan Turley