Ohio’s child-enticement statute unconstitutionally prohibits expression and activity protected by the First Amendment.

Ohio’s child-enticement statute unconstitutionally prohibits expression and activity protected by the First Amendment.

The Ohio Supreme Court ruled today that Ohio’s child-enticement statute is unconstitutional because it prohibits a significant amount of constitutionally protected activity.

In the 5-2 decision, authored by Justice Judith Ann Lanzinger, the judgments of both the Tenth District Court of Appeals and the trial court were upheld because the broad language of the statute can lead to criminal charges against a person in many innocent situations.

Jason Romage of Columbus was charged with criminal child enticement in 2010. The complaint alleged that by offering money to a neighborhood child to carry some boxes to his apartment, he violated R.C. 2905.05(A). The law bars a person from knowingly soliciting, coaxing, enticing, or luring a child under age 14 to accompany the person in any manner without the permission of the parent or legal custodian. (The law includes exceptions for law enforcement, medics, firefighters, and others.)

Romage pled not guilty and asked the trial court to dismiss the complaint, arguing that the law was too broad. The trial court agreed. The state appealed the decision to the Tenth District, which upheld the trial court’s decision.

The Tenth District notified the Supreme Court that its decision conflicted with a judgment from the First District Court of Appeals. The Ohio Supreme Court agreed and decided to hear the case. The court also accepted an appeal from the state.

In the court’s majority opinion, Justice Lanzinger wrote: “We have held that ‘protection of members of the public from sexual predators and habitual sex offenders is a paramount governmental interest.’ … Certainly, the safety and general welfare of children is even more deserving of governmental protection. But a statute that defines criminal conduct should not include what is constitutionally protected activity. Even though the state has a legitimate and compelling interest in protecting children from abduction and lewd acts, a statute intended to promote legitimate goals that can be regularly and improperly applied to prohibit protected expression and activity is unconstitutionally overbroad. … R.C. 2905.05(A) is such a statute. … The statute fails to require that the prohibited solicitation, coaxing, enticing, or luring occur with the intent to commit any unlawful act.”

She noted that both a coach driving an elementary school student home to get a forgotten piece of equipment and a senior citizen offering to pay money to a 13-year-old for help with a household chore could be charged with criminal child enticement under the law.

Even if the court narrowly defined the word “solicit” in the statute, the law “would still criminalize a substantial amount of activity protected by the First Amendment,” Justice Lanzinger wrote.

“The statute forbids anyone other than the legal custodian of a child, those listed in R.C. 2905.05(A)(2), or those who have the legal custodian’s express permission to solicit a child under the age of 14 to accompany the person ‘in any manner’ for any purpose,” she continued. “The motivation for the solicitation is irrelevant. There is no requirement that the offender be aggressive toward the victim. One need not have intent to commit a crime. Short of rewriting R.C. 2905.05(A), which is the province of the legislature rather than the court, we cannot construe the statute in such a way as to find it constitutional.”

She also reasoned that the court cannot sever the word “solicit” from the law to keep it from being declared unconstitutional.

“[T]he remaining language — that no person may ‘coax, entice, or lure any child … in any manner’ — still encompasses a wide range of innocent and protected conduct. An elderly person offering a child under 14 years old money to come with her to help with chores is more than merely asking, and this activity would arguably constitute coaxing, enticing, or luring. … In other words, severance of the single word does not transform the statute into a constitutional one. The statute would still capture a substantial amount of protected conduct because without a criminal-intent requirement, it is still not narrowly tailored to achieve the state’s interest in protecting children.” 

Joining the court’s majority were Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill. Justice Judith L. French dissented in an opinion joined by Chief Justice Maureen O’Connor.

In her dissent, Justice French contended that the court should construe the term “solicit” narrowly instead of declaring the statute unconstitutional.

“The majority reads ‘solicit’ out of context and uses the broadest definition it can find — ‘merely asking’ — which it borrows from an appellate decision,” Justice French wrote. “By its use of a sweeping, out-of-context definition, the majority ignores the principle that courts should refrain from striking down a statute on First Amendment grounds whenever ‘a limiting construction has been or could be placed on the challenged statute.’…  When reading the word ‘solicit’ with its neighboring operative verbs — ‘coax, entice, or lure’ — one can reasonably find a more sinister connotation. Solicit can mean to ‘lead astray’ or ‘lure on and esp. into evil.’  (Emphasis added.) … Applying this narrower construction, I cannot conclude that R.C. 2905.05(A) criminalizes a substantial amount of activity protected by the First Amendment.”

2012-1958 and 2012-2042. State v. Romage, Slip Opinion No. 2014-Ohio-783.

View oral argument video of this case.

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