Statutory Rape Law Held Unconstitutionally Open to Selective Enforcement, As Applied to Sex Between Two Minors

June 10, 2011

what is good for the Goose is… uh good for the Goose… or um… What is good for the Gosling is good for the Gosling:

a 12-year-old boy, D.B., who had sex with an 11-year-old boy, M.G. D.B. was charged both with forcible rape of M.G. and with statutory rape, which criminalizes any sex with someone who “is less than thirteen years of age.” (A different statute makes it a crime for an over-18-year-old to have sex with a 13-to-16-year-old, so don’t think that the general age of consent in Ohio is 13.) The juvenile court judge convicted D.B. of the statutory rape, but not of the forcible rape, gave him probation and a suspended sentence, and ordered him “to attend counseling and group therapy.”
Of course, if there was no forcible rape, then M.G. as well as D.B. would be guilty of statutory rape, since M.G. also had sex with someone (D.B.) who was “less than thirteen years of age.” The prosecutor, though, prosecuted only D.B. In this case, that prosecutorial choice was basically mandated as to most of the sexual incidents by the prosecutor’s view that the sex was forced by D.B. (One of the nine counts of the indictment was for statutory rape alone, while the others were for forcible rape or statutory rape; but even there the prosecutor might well have thought the sex was forced, like he thought it was in the other eight incidents, but just thought the evidence was inconclusive on the subject.)

the Ohio Supreme Court basically held that this discretionary approach to statutory rape, under which two people would routinely be guilty but the prosecutor would choose which one to prosecute, violates the federal Due Process Clause and Equal Protection Clause: The statute is “unconstitutionally vague because the statute authorizes and encourages arbitrary and discriminatory enforcement.” And, “[b]ecause D.B. and M.G. were both under the age of 13 at the time the events in this case occurred, they were both members of the class protected by the statute, and both could have been charged under the offense,” so “[a]pplication of the statute in this case to a single party violates the Equal Protection Clause’s mandate that persons similarly circumstanced shall be treated alike.” (The opinion was unanimous on the first, Due Process Clause, theory, though one judge didn’t endorse the Equal Protection Clause theory.)

Girl, 13, charged as sex offender and victim

If this reasoning is accepted throughout the country, the results would be sweeping. First, many states outlaw all sex — without exceptions for people close in age — not just with under-13-year-olds, but with under-16-year-olds or, in the case of California, under-18-year-olds. (Sex among 15-to-17-year-olds is a misdemeanor, in theory for both parties.) All those statutory rape laws would be cast into doubt, when applied to sex among minors who are under the age of consent. via volokh.com  and image via best-of-web.com

this is completely stupid.  They are 12 years old!  You don’t prosecute children for their urges if the sex is consensual.  Sorry… the Sexual hysteria is really insane