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“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.”

— Justice Judith Lanzinger, Ohio Supreme Court

“This is not the mechanism we would prefer to use,” Oswalt said. “Give me a tool (so) I can get that addressed.”

— Ken Oswalt, Licking County Prosecutor

There is, perhaps, no crime that shocks the conscience to a greater degree than a sexual offense perpetrated against a child. Rightfully so, they carry extremely severe and often mandatory penalties. Depending on the age of the perpetrator and the age of the victim, the mere act, even without force or coercion, can be criminal.

In Ohio, state law provides that any sexual conduct with a person under the age of 13 constitutes the offense of rape. The theory behind the Ohio legislation, and similar statutes like it around the nation, is that a child under that age is simply not capable of consenting to a sexual act and that any adult should know that and avoid the sexual activity. Objection is typically raised to saying that any sexual conduct with a child that age is “consensual” because children of that age are not deemed able to consent. These crimes are what are known as ‘statutory rape’ since it is the operation of the statute, not force or coercion, that makes the act criminal.

For years, prosecutors and juvenile courts in Ohio have struggled with how to apply the statute in situations where the sexual act occurs between two children under the age of 13. Sadly, this occurs far more frequently than might be thought. Such an instance came before the juvenile court of Licking County in 2008.

In that matter a 12-year-old juvenile was charged with engaging in sexual activity with an 11-year-old juvenile on multiple occasions. The accusations were based on two different sections of Ohio law. Some of the counts accused the older boy of physically forcing the younger child into the sexual activity. Other counts in the complaint simply alleged that the victim was under the age of 13; in other words, that the offenses constituted statutory rape.

The alleged delinquent child didn’t deny that the sexual activity had occurred. Instead, he simply claimed that there was no force involved. The case proceeded to trial in Newark. Following the presentation of evidence, the juvenile judge found that the state had failed to prove that there was any force involved. The judge went on to find that because the victim was under the age of 13, the offenses constituted statutory rape and adjudicated the boy as being delinquent.

The boy appealed and on Wednesday of this week the Supreme Court of Ohio, by a vote of 7-0, overturned his adjudication. The Court based its decision on a conclusion that the statutory rape law was “impermissibly vague” as it applied to offenders under the age of 13. Laws, particularly those that impose criminal penalties, cannot be so vague that people cannot understand what act is prohibited, nor can they allow for arbitrary or discriminatory enforcement.

The Ohio Supreme Court found that when two children under the age of 13 engage in sexual conduct and no force or coercion is involved, the statute provides no manner of determining which of them should be charged as the offender and which should be considered the victim, or alternatively whether both should be charged. The Court determined that the statute encouraged arbitrary and discriminatory enforcement because where both persons are under the age of 13 the traditional definitions of offender and victim break down.

The ruling has no affect on the application of the statute to adults or to juveniles 13 years of age or older who offend against juveniles under the age of 13. It also has no affect on the application of the statute to juveniles under the age of 13 who use force or coercion to offend another child.

The full decision of the Supreme Court can be read at supremecourt.ohio.gov.

David Hejmanowski is a magistrate and court administrator of the Delaware County Juvenile Court and a former assistant prosecuting attorney.


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