Ohio Supreme Court: 12-year-old Boy Charged with Statutory Rape for Having Consensual Sex with an 11-year-old Boy under Unconstitutional Statute

UPDATED 7/15/11: The Ohio Supreme Court has rejected Licking County Prosecutor Ken Oswalt's request to put on hold its 7-0 ruling last month that consensual sex between two children under the age of 13 is not a crime under state law.

June 9, 2011
by Amy Grover, 2L at Cincinnati Law

Yesterday, the Supreme Court of Ohio reversed the statutory rape conviction of a young boy for having consensual sex with another boy. He was charged with violating a statute that makes it a crime for any person to engage in sexual activity with anyone under the age of 13. The boy he was charged with statutorily “raping” was 11 at the time of the charge. The problem, however, was that the alleged perpetrator was only 12 at the time of the charge.

Even though both boys were technically victims and perpetrators, because both were under 13, charges were only brought against one of them. As the physically larger boy, he was seen as the “aggressor.” The Supreme Court of Ohio decided that applying the statute to a child who was himself under the age of 13 was unconstitutional because it allowed for discriminatory enforcement of the law. Here, the discriminatory enforcement was the conviction of the larger boy and not the smaller boy, even though the alleged victim sometimes initiated the sexual contact.

If you are interested in reading the decision, you can find it here: http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-2671.pdf

Absent from the opinion, however, is the gigantic neon elephant in the room; the fact that this boy was prosecuted for engaging in CONSENSUAL SAME-SEX SEXUAL ACTIVITY. This conviction is unfortunately representative of a national trend to prosecute children who engage in same-sex activity with children their own age. 

An anonymous public defender explained the situation as follows: 

“If it’s two boys and they’re both young or it’s two girls, there’s a tendency to assume it’s abuse. [With] opposite genders they’re more likely to say ‘Well, you know, they’re experimenting.’ [With same-sex behavior] there’s a tendency to put the worst spin on it.”

Some of these prosecutions are encouraged by parents who find out that their children are experimenting with children of the same sex and want to punish the gay out of them. These kids are being punished for trying to figure out who they are and what they want. Unless our society learns to be accepting of all sexualities and to just let people be who they are, consensual same-sex activity will continue to be punished.

For more information about these and other discrepancies in the way LGBTQ youth are treated in the juvenile justice system, check out this pamphlet created by the Equity Project: http://www.equityproject.org/pdfs/hidden_injustice.pdf

It is especially disturbing that kids are being treated this way, while they are developing their sense of identity and self-worth. What can we do to help kids value and accept themselves, even when other people don’t?

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1 comment:

  1. What an incredible story. Hopefully, people start to realize the challenges that LGBTQ youth face.


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