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Ohio Statutory Rape Law Struck Down

By Cynthia Hsu, Esq. on June 09, 2011 | Last updated on March 21, 2019

Is statutory rape unconstitutional when it occurs between two minors? Apparently so under Ohio's statutory rape law. The Ohio Supreme Court has ruled that the law, as applied between two children under the age of 13, was unconstitutional.

The case was brought to the Ohio Supreme Court after a conviction in juvenile court of five counts of statutory rape against a boy, identified as D.B. The boy, 12, had engaged in anal sex with another boy, M.G., 11, several times in 2007, reports The Plain Dealer.

D.B. was found to be the "instigator" of the incidents, and was also described as being taller and heavier than the younger boy. Both boys had admitted to consenting to the sex. Another boy, A.W., 12, a witness and one-time participant of the boys' sexual activities, reportedly said that the incidents were consensual as well, reports The Plain Dealer.

The boys had said that they were exchanging sex for video games, reports The Plain Dealer.

D.B.'s attorneys had argued that the statutory rape law was unconstitutionally vague because both the victim and perpetrator were under the age of 13. Ohio's statutory rape law prohibits sex with minors under the age of 13, but does not go into what would happen if both the victim and perpetrator are under the age of 13, reports The Plain Dealer.

In fact, in the unanimous ruling, some of the judges even questioned why prosecutors decided to prosecute the case against D.B. "These are kids," said Justice Yvette McGee Brown. Brown also asked whether or not the prosecutor's office would start going through schools to look into allegations of other children engaging in exploratory sex.

Laws can be found to be unconstitutionally vague if citizens cannot determine what the law means from reading it. For example, if a law is passed that is unclear on what actions are prohibited, it's difficult for citizens to comply with the law simply because it's too vague on what is illegal - this is the argument that D.B.'s attorneys likely used when challenging the statutory rape law.

For now, the Ohio statutory rape decision means that statutory rape is unconstitutional - but only when applied to situations where both parties are under the age of 13.

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