Court will consider if its constitutional to charge minors under age 13 with gross sexual imposition.

Court will consider if its constitutional to charge minors under age 13 with gross sexual imposition.

The Ohio Supreme Court next week will consider whether Ohio’s gross sexual imposition law is constitutional when applied to minors under age 13.

Oral arguments are scheduled before the state’s highest court to resolve the conflict over the law, R.C. 2907.05(A)(4). The Franklin County Juvenile Court concluded that applying the law to two minors under 13 was unconstitutional, but the Franklin County Prosecuting Attorney’s Office successfully challenged that decision in the appellate court.

Under Ohio law children under age 13 can’t legally consent to sex, leading to a charge of statutory rape when any person over 13 engages in sexual conduct with anyone under 13. The Ohio Supreme Court has previously ruled that when two minors both under 13 have sex neither can be charged with rape. Now the Supreme Court will consider if that same logic applies to a different type of sex crime, gross sexual imposition, when both participants are under 13.

Children Live Together
In 2013, a child identified in court records as D.S. was charged with three counts of gross sexual imposition based on an encounter between D.S and D.M. who live in the same household along with the father of D.S. and the mother of D.M. At the time, D.S. was 12 years and 3 months old, and D.M was 9 years and 10 months old. The complaint alleged D.S. inappropriately touched and engaged in intercourse with D.M. There was no allegation of use of force by D.S. or physical resistance by D.M.

In 2014, attorneys for D.S. sought to dismiss the charges based on the Supreme Court’s 2011 In re D.B. decision, which found the statutory rape law is unconstitutional when applied to two children under 13. In D.S.’s case, the juvenile court judge noted that the closeness in age made it difficult to determine if one boy should be charged with a crime but not the other. The judge indicated that the two complaints involving intercourse could have been charged as rape, but that would have directly violated In re D.B.

The judge ruled that it would be unconstitutional to charge D.S. on any of the three counts, and decided to invoke Juvenile Rule 9, which allowed the case to be dismissed, and then ordered treatment for both children. The juvenile court threatened removing the children from the parents if they didn’t comply.

Prosecutor Challenges Decision
By a 2-1 ruling, the Tenth District Court of Appeals sided with the prosecutor’s argument that In re D.B. didn’t apply to gross sexual imposition because the key element of the two crimes are different. “Sexual conduct” is a key element of statutory rape while “sexual contact” is key to gross sexual imposition. “Sexual conduct” requires engaging in a sex act “without privilege to do so,” while sexual contact includes any touching “for the purpose of sexually arousing or gratifying either person.”

The Tenth District ruled D.S. could’ve been found to have acted with the “purpose” of sexual gratification while D.M. wasn’t. The prosecutor argues that given the chance to present more evidence in the case, the juvenile court could’ve determined that D.S was the perpetrator and D.M. was a victim. The prosecutor isn’t questioning the juvenile court’s right to order treatment instead of prosecution, but maintains the decision was made at too early a stage of the case and that deprived the prosecution of proving D.S.’s constitutional rights weren’t violated.

Eight Cases Set for Oral Argument
In re D.S. is one of eight cases the Court will hear during its May 16-17 session. The Court will hear four cases each day, including In re D.S. on Wednesday, May 17. Court session begins at 9 a.m. each day at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live on The Ohio Channel.

Case Previews Available
Along with the brief descriptions below, the Office of Public Information today released previews of the central arguments in the cases.

Cases for Tuesday, May 16
The owners of condominiums in a Columbus complex dispute an increase in their property taxes for 2013. In NWD 300 Spring v. Franklin County Board of Revision, the county auditor assessed the land’s value without any improvements at $6.3 million, the local school board valued it at $3.3 million, and the condo owners appraised it at $1.2 million. The owners argue the valuation should be based on nearby multi-family residences, while the school board states that the property taxes must be determined by “the highest and best use” of the land, which includes multi-family properties with retail and office space.

In 2008, a non-profit organization purchased an abandoned railroad line that extended from the Summit County border to Orrville. Three landowners whose property abuts the trail assert that they now own the land through the principle of adverse possession because the railroad abandoned it more than 21 years ago. The non-profit argues the landowners can’t claim it because Sprint and AT&T licensed the right to place underground fiber-optic cables along the old train tracks and have been maintaining the trail area. In Koprivec. v. Rails-To-Trails, the Court will consider whether the occasional maintenance on the trail over the years and decades-old warnings from the railroad companies that it was still their property defeat the landowners’ possession claims.

A Hamilton County trial court denied a motion to suppress evidence of cocaine discovered during a search of a woman’s car. During an off-the-record conversation with the judge and the prosecutor, the woman’s attorney said his client would plead no contest to preserve her right to appeal the court’s denial of the motion. The judge responded that the court had a blanket policy of refusing to accept no-contest pleas. In open court, the woman’s attorney summarized the conversation for the record, and the client pleaded guilty.  The Court will determine in State v. Beasley if the attorney’s summary of the conversation was sufficient to allow an appeal.

The Board of Professional Conduct recommends a two-year suspension with 18 months stayed for a Lorain County attorney who waited more than eight months to return a disputed fee. In Lorain County Bar Association v. Nelson, the board found the attorney violated professional rules by waiting until after the client filed a grievance with the county bar before agreeing to return $9,000 of the $10,000 he was paid. The attorney objects to the severity of the sanction, arguing he believed it was just a fee dispute that he thought he could settle with the client.

Cases for Wednesday, May 17
A Lawrence County school custodian was labeled a “substitute” by the school board for nine consecutive years, although he maintains he works as much as a regular custodian. He asks the Court in Singer v. Fairland Local School District to direct the board to offer him a long-term contract so that he has the pay and benefits of a regular employee. The Court will consider if an employee who works more than 120 days a year in a public school district is a “regular nonteaching school employee” entitled to a contract, regardless of the district label.

A local gas company detected natural gas in a Toledo neighborhood five years ago and stopped service to 13 homes. The company determined the gas lines weren’t leaking, but the problem was a safety hazard, and it informed the residents they needed to fix the issue before service could be restored. In re Complaint of Lycourt-Donovan v. Columbia Gas of Ohio centers on whether the gas company violated a state law that prohibits a public utility from abandoning, withdrawing, or closing service without receiving authorization from the state’s public utilities commission.

In State v. Batista, a Hamilton County man didn’t tell his girlfriend he had HIV before they began a sexual relationship. Ohio law requires persons with HIV to disclose that they have the virus before engaging in sexual conduct with a partner. The man was convicted of felonious assault and sentenced to eight years in prison. He contends that the statute violates the constitutional right to equal protection because it treats HIV-positive individuals differently than people with other infectious diseases, distinguishes between sexual transmission and other ways of contracting the virus, and isn’t rationally related to the government’s goal of reducing the spread of the virus. He also argues that the law unconstitutionally compels speech.