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Court News Ohio
Court News Ohio

Juvenile Court Can Dismiss Sexual Crimes Committed by Young Children

The rules of juvenile court allow a judge to dismiss criminal gross sexual imposition charges against a minor under age 13 who engages in sexual conduct with a child close in age, the Ohio Supreme Court ruled today.

A Supreme Court majority opinion  ruled that a Franklin County Common Pleas Court judge had the power to dismiss a delinquency charge against a boy who was 12 years old at the time he engaged in sexual conduct with another boy who was almost 10. In the Court’s lead opinion, Justice William M. O’Neill wrote that Juvenile Rule 9(A) gives the juvenile court the power to end the criminal prosecution and order treatment at an early stage of the proceedings, instead of formal action.

Chief Justice Maureen O’Connor and Justice Terrence O’Donnell joined Justice O’Neill’s opinion.

Justice Patrick F. Fischer also voted to dismiss the charges against the boy, identified in court records as D.S. In an opinion concurring with the lead opinion, Justice Fischer wrote the juvenile court did not abuse its discretion, but he believes the lead opinion could be “interpreted as an expansion of the material rights of juveniles” and that expansion is not necessary to rule in D.S.’s favor.

In a dissenting opinion, joined by two other justices, Justice Sharon L. Kennedy wrote that the rule does not allow a juvenile court to dismiss a charge after it has been filed, but only allows treatment to be ordered before a child is formally charged. She cited another juvenile rule that allows dismissal later in the proceedings after more facts are in the record.

Child’s Conduct Analyzed
In 2013, Franklin County prosecutors alleged that D.S. had sexual conduct with another boy by touching him and engaging intercourse. The complaint did not allege the use or threat of force by D.S. on the younger child. D.S. was charged with three delinquency counts under R.C. 2907.05(A)(4), which would be felony charges of gross sexual imposition if committed by an adult.

D.S. asked the juvenile court to dismiss the charges based on two theories. First, he cited the Ohio Supreme Court’s 2011 In re D.B. decision to claim that it was unconstitutional to apply the gross sexual imposition law to a minor under 13 engaged in sexual conduct with another minor under 13. He also argued that Juv.R. 9(A) gave the juvenile court the discretion to dismiss criminal charges if the judge found that the use of “other community resources” to address the situation was more appropriate.

A juvenile magistrate first heard the challenge and denied D.S.’s request. The magistrate found the factual record had not been sufficiently developed to justify dismissal. D.S. objected to the magistrate’s decision, and a juvenile court judge reversed the ruling and dismissed the charges.

The judge noted that since the children were close in age and the incident involved no threat of force or violence it would be arbitrary to determine that one child should face delinquency charges, but not the other. The juvenile judge concluded that alternative methods to treat the needs of both children would be better than formal court action, and if the parents would not provide the treatment, the county could take action to treat the children.

The prosecutors appealed the decision to the Tenth District Court of Appeals, arguing the dismissal was improper because of the limited record and that further proceedings could determine if either child violated the law. In a split decision, the Tenth District agreed with the prosecutors and remanded the case to the juvenile court for further proceedings. D.S. appealed the Tenth District’s decision to the Supreme Court, which agreed to hear the case.

Juvenile Courts Given ‘Considerable Discretion’
Justice O’Neill wrote that the juvenile rules clearly provide the court with considerable discretion to “provide for the care, protection, and mental and physical development of children” while also protecting the public’s interest by treating children before the court as “persons in need of supervision, care, and rehabilitation.” The opinion notes that Juv.R. 9(A) states: “In all appropriate cases formal court action should be avoided and other community resources utilized to ameliorate situations brought to the attention of the court.”

The opinion stated that the Ohio Supreme Court has considered the rule only once before in cases involving children under 13 and found it is appropriate to dismiss a juvenile complaint based only on the evidence cited in the complaint. The Court noted in that case the “trauma which the impending trial is causing and could cause the family is far more serious” than the alleged sexual acts by the young children.

The Court determined that D.S. and his family could face the same concern if the formal proceedings were to continue.

“As the state argued, a full formal court proceeding would no doubt have developed a more detailed factual record upon which the juvenile court might have relied in determining the proper outcome in this case. But that is precisely the kind of proceeding that Juv.R. 9(A) empowers a juvenile court to avoid—a review of the details of a sexual interaction between children under the age of 13,” the opinion stated.

The Court explained a juvenile court’s primary concern may not be to determine if a minor committed a crime.

“As we have recognized in the past, holding a formal proceeding to determine whether a child was motivated by innocent curiosity or by culpable sexual gratification may be as bad or worse for the children involved—and for society—as was the act itself,” the opinion concluded.

By deciding that the rules granted the juvenile court the power to dismiss the case, the opinion noted that the Court did not consider whether the law was unconstitutional when applied to D.S.

Rules Not Followed, Dissent Maintains
In her dissent, Justice Kennedy wrote that the rule does not give the juvenile court the right to dismiss a formally filed charge. Therefore, the court abused its discretion in dismissing the charges against D.S.

The dissent maintained that in the prior case before the Supreme Court involving Juv.R. (9)(A), the Court did not actually rely on the rule to dismiss the case. Instead, the In re M.D. decision in 1988 stated the complicity to rape charges against the 12-year-old girl were dropped when the court determined the two 5-year-old children she directed to engage in oral sex did not commit rape. Without a rape charge, the girl could not be charged with complicity to rape, the dissent explained.

Justice Kennedy also noted that the majority failed to consider the second part of Juv.R. 9. She noted Juv.R. 9 is titled “Intake” and Juv.R. 9(B) states: “Information that a child is within the court’s jurisdiction may be informally screened prior to the filing of a complaint to determine whether the filing of a complaint is in the best interest of the child and the public.”

“A plain reading of Juv.R. 9(A) provides that if an appropriate matter is brought to the court’s attention, other community resources can be used in lieu of formal court action. Moreover, Juv.R. 9(B) gives the juvenile court discretion to examine cases prior to the filing of formal charges in order to determine whether it is in the best interest of the child and the public to permit the filing of formal charges,” the dissent stated.

The dissent noted the word “dismiss” does not appear in the rule and, once a charge is filed, the case must proceed. The dissent also noted the juvenile rules include two other provisions that do empower a juvenile court to dismiss the case, including Juv.R. 29(F)(1). That rule allows dismissal only after “the allegations are admitted or proved.”

“Because the juvenile court had no authority pursuant to Juv.R. 9 to dismiss the formal complaint, the court abused its discretion,” the dissent concluded.

Justice Kennedy also addressed the constitutionality of the gross sexual imposition charges against D.S., an issue that was ignored by the majority since it dismissed the charges against D.S. under Juv.R.9. 

In his appeal, D.S. argued that charging him with gross sexual imposition was unconstitutional under the authority of In re D.B. In that case, the Court held that charging a child with statutory rape of another child under R.C. 2907.02(A)(1)(b) was unconstitutional because it was impossible to determine which child was the offender, and which child was the victim. Under the offense of statutory rape, if the offender commits the act (has sexual conduct with the victim under the age of 13), the offender has committed the crime.

The dissent recognized that the gross sexual imposition offense under R.C. 2907.05(A)(4) (sexual contact against a child under the age of 13) charged against D.S. in this case was distinguishable from the statutory rape charges against D.B. because gross sexual imposition requires the state to prove that the offender acted with an intent to gratify himself, or their victim, in committing the offense. Therefore, Justice Kennedy recognized that in a situation involving two or more children, it would be possible to differentiate which child committed gross sexual imposition because the offender would have acted with intent, while the victim did not.

Accordingly, Justice Kennedy would hold that gross sexual imposition charges filed against a child, including D.S., for committing gross sexual imposition against another child would be constitutional, as long as the state could prove that the offender acted with the required intent.

Justices Judith L. French and R. Patrick DeWine joined the dissenting opinion.

2016-0907. In re D.S., Slip Opinion No. 2017-Ohio-8289.

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