Wednesday, June 8, 2011

Rape Offense Unconstitutional Where Both Are Under 13

The web page of the Ohio Supreme Court reports on a decision issued today:

The Supreme Court of Ohio ruled today that the state law that defines sexual activity with a child under the age of 13 as rape is unconstitutional as applied to sexual conduct between two children who are both under 13 when neither child uses force or impairs the other in any way.

The Court’s 7-0 decision held that R.C. 2907.02(A)(1)(b), a subsection of Ohio’s rape statute which provides that “no person shall engage in sexual conduct with another ... ” when “the other person is less than 13 years of age” is unconstitutionally vague and violates the right to equal protection of the laws when it is applied to charge one but not the other of two children under the age of 13 who engage in sexual conduct with one another.

The decision, which reversed a ruling by the 5th District Court of Appeals, was authored by Justice Judith Ann Lanzinger.

The case involved a 12-year-old boy identified as D.B. and his 11-year-old friend, identified as M.G., who engaged in sex acts with each other on several occasions. In each instance, D.B., who was physically taller and heavier than M.G., was the instigator of the sexual conduct. Both boys and a mutual friend who witnessed some of the acts testified that M.G. consented to the conduct. When the boys’ parents discovered the conduct, D.B. was charged with multiple delinquency counts of rape in the Licking County Juvenile Court. The complaint alleged that D.B. had committed forcible rape under R.C. 2907.02(A)(2) or in the alternative had committed statutory rape in violation of R.C. 2907.02(A)(1)(b) by engaging in non-forcible sexual conduct with a child under the age of 13.

Attorneys for D.B. filed a pretrial motion to dismiss the statutory rape charges on the basis that both participants had “engaged in sexual conduct” with a person under the age of 13, and therefore applying R.C. 2907.02(A)(1)(b) to charge one participant as the perpetrator and the other as the victim violated the equal protection and due process provisions of the state and federal constitutions.

The juvenile court deferred ruling on the motion to dismiss until after it had reviewed the evidence and testimony presented at trial. After dismissing several of the original rape counts and concluding that D.B. had not coerced M.G. by force or threat of force on any of the occasions they engaged in sexual conduct, the court adjudicated D.B. guilty of five delinquency counts of statutory rape based solely on R.C. 2907.02(A)(1)(b). D.B. was sentenced to a term of commitment to the Ohio Youth Commission of a minimum of five years to a maximum of his 21st birthday, with the full term of commitment suspended indefinitely. He was also ordered to attend counseling and group therapy.

D.B. appealed. The 5th District Court of Appeals upheld the juvenile court’s judgment, holding that the trial court’s application of R.C. 2907.02(A)(1)(b) to convict D.B. of delinquent statutory rape under the facts of the case was not unconstitutional. D.B. sought and was granted Supreme Court review of the 5th District’s ruling.

In today’s decision, Justice Lanzinger wrote: “D.B. argues that R.C. 2907.02(A)(1)(b) is unconstitutional in two ways. First, he argues that the statute is vague as applied to children under the age of 13, and thus violates his right to due process. Second, he argues that the statute was applied in an arbitrary manner in this case in contravention of his constitutional right to equal protection.”

“A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement. ...”

“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 facts of this case provide an example of the temptation for prosecutors to label one child as the offender and the other child as the victim. Based apparently upon the theory that D.B. forced M.G. to engage in sexual conduct, the state alleged that D.B., but not M.G., had engaged in conduct that constituted statutory rape. However, while the theory of D.B. as the aggressor was consistent with the counts alleging a violation of RC. 2907.02(A)(2), which proscribes rape by force, this theory is incompatible with the counts alleging a violation of statutory rape because anyone who engages in sexual conduct with a minor under the age of 13 commits statutory rape regardless of whether force was used. Thus, if the facts alleged in the complaint were true, D.B. and M.G. would both be in violation of R.C. 2907.02(A)(1)(b).”

“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 facts of this case demonstrate that R.C. 2907.02(A)(1)(b) authorizes and encourages arbitrary and discriminatory enforcement when applied to offenders under the age of 13. The statute is thus unconstitutionally vague as applied to this situation. ...”

“We note that while we hold that R.C. 2907.02(A)(1)(b) is unconstitutional as applied to a child under the age of 13 who engages in sexual conduct with another child under the age of 13, a child under the age of 13 may be found guilty of rape if additional elements are shown: the offender substantially impairs the other person’s judgment or control, R.C. 2907.02(A)(1)(a); the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or advanced age, R.C. 2907.02(A)(1)(c); or the offender compels the other person to submit by force or threat of force, R.C. 2907.02(A)(2). None of those additional elements was present here.”

“Application of R.C. 2907.02(A)(1)(b) in this case also violates D.B.’s federal right to equal protection. The plain language of the statute makes it clear that every person that engages in sexual conduct with a child under the age of 13 is strictly liable for statutory rape, and the statute must be enforced equally and without regard to the particular circumstances of an individual’s situation. R.C. 2907.02(A)(1)(b) offers no prosecutorial exception to charging an offense when every party involved in the sexual conduct is under the age of 13; conceivably, the principle of equal protection suggests that both parties could be prosecuted as identically situated. 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, while at the same time 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.”

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Yvette McGee Brown. Justice Robert R. Cupp concurred in the Court’s judgment, syllabus, and opinion solely on the basis of the due process analysis.

The decision is linked here.  (Mike Frisch)

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