Statutory Rape Provision Violated Minor's Federal Constitutional Rights

Vol 30 No 6

In re D.B., 2011 WL 2274624 (Ohio).

Provision in rape statute prohibiting a person from engaging in sexual conduct with a person under age 13 was unconstitutionally vague as applied to offenders who were themselves under age 13. Therefore, it violated the Due Process Clause of the U.S. Constitution since it encouraged arbitrary and discriminatory enforcement. The statute also violated the Equal Protection Clause since only one child under age 13 was charged for engaging in sexual conduct while others who were similarly situated were not.

A 12-year-old boy was charged with nine counts of rape arising from sexual conduct between him and an 11-year-old boy. He was also charged with one count of rape for sexual conduct with a 12-year old boy He was charged under a statute that defines sexual activity with a child under 13 as rape, a first-degree felony. All counts alleged that he was a delinquent child.

The boy moved to dismiss the complaint, claiming the state could not show sufficient evidence that he was guilty of rape and that applying the rape statute in this case violated his federal and state rights to due process and equal protection because it was vague and overbroad.

The state filed an amended complaint dropping the count involving the 12 year old and amending several counts to allege the boy engaged in forcible sexual conduct with the 11 year old or had threatened him to comply, in violation of the state statute criminalizing statutory rape. One count in the amended complaint alleged the boy had engaged in sexual conduct with a person less than 13 years old. The other eight counts alleged he engaged in conduct with the 11 year old in violation of the rape statute. All counts alleged he was a delinquent child.

At the adjudicatory hearing, the alleged 12-year-old victim from the original complaint testified about the boy’s sexual conduct with the 11 year old. He said the boy would bargain with or use physical force before engaging in sexual conduct and that the 11 year old had agreed to the activity. The boy’s father also testified, describing his son as bigger than other children his age, but not aggressive or a bully.

Defense counsel moved for acquittal and the court dismissed several counts, finding no basis that the boy had engaged in forcible sexual conduct. At a hearing on the remaining counts, the court concluded that the sexual acts occurred, but that it could not find the boy used force during any of them. The court therefore adjudicated the boy delinquent for rape and later committed him to the Department of Youth Services for five years, suspended the commitment, placed him on probation indefinitely, and ordered him to attend counseling and therapy.

The boy appealed in the Fifth District Court of Appeals, claiming that applying the rape statute violated his federal rights to due process and equal protection and the trial court abused its discretion in adjudicating him delinquent for rape. The court of appeals upheld the constitutionality of the delinquency statute and held the trial court did not abuse its discretion in adjudicating him delinquent for rape and engaging in sexual conduct with an 11 year old.

The Supreme Court of Ohio accepted jurisdiction over the boy’s proposition of law stating that applying the rape statute to a child under age 13 violated his due process and equal protection rights under the U.S. and Ohio Constitutions. The boy claimed the statute violated his right to due process because it was vague as applied to children under 13. He argued the statute failed to provide guidelines designating who is the victim and who is the offender, leading to arbitrary and discriminatory enforcement. The court agreed, explaining that when an adult engages in sexual conduct with a child under age 13, the offender and victim are clear. However, when two children under age 13 engage in sexual conduct, each child is an offender and a victim, with no clear distinction between those terms.

The state claimed the boy, not the child with whom he had engaged in sexual contact, had committed statutory rape. While a theory that claimed the boy was the aggressor could support the alleged violation of the statute prohibiting rape by force, it did not support the counts alleging violation of statutory rape “because anyone who engages in sexual conduct with a minor under age 13 commits statutory rape regardless of whether force was used.” Therefore, if the alleged facts in this case were true, both involved minors would be in violation of the statutory rape statute.

The court found these facts showed the statutory rape statute authorized and encouraged arbitrary and discriminatory enforcement by permitting the prosecutor to choose to charge only one minor with statutory rape even though two minors engaged in sexual conduct with each other. The court stressed that consent plays no role in whether a person violates the statutory rape statute, nor does the offender’s alleged use of force.

Although the court found the statutory rape statute was unconstitutional as applied to a child under age 13 who engages in sexual conduct with another child under age 13, it said a child under age 13 may still be found guilty when the following factors are shown:

  • The offender substantially impairs the other person’s judgment or control;
  • The other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or advanced age; or
  • The offender compels the other person to submit by force or threat of force.

None of these factors were present in this case.

The court also found the statutory rape statute violated the boy’s federal right to equal protection. It explained that the statute clearly makes every person who engages in sexual conduct with a child under age 13 liable for statutory rape and that the statute must be enforced equally. Since both minors involved in the alleged sexual conduct in this case were both under age 13 when the conduct occurred, they were both protected by the statute and both could have been charged with the offense. However, applying the statute only to one party violated the Equal Protection Clause’s mandate to treat similarly situated people alike.

While three minors allegedly engaged in sexual conduct, only one was charged with violating the statutory rape statute. Such arbitrary enforcement violated that minor’s right to equal protection.

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