Fault Lines
20 May 2018

Ohio: Where Cops Can Have Sex With Under-Age Girls, But Biologically Unrelated Adults Cannot

August 16, 2016 (Fault Lines) – Recently, Greg Prickett and I debated whether Blue Lives Matter bills were a good idea. The essence of the discussion revolved around whether law enforcement officers needed or deserved additional protections. The idea of including law enforcement officers is loosely based on the notion of equal protection. This means if you have an identifiable class of people suffering harm because of their membership in that class, then the government should typically work to protect them and ameliorate the harm.

In Greg’s rebuttal he rejected the idea that law enforcement officers should be considered a class of people identifiable under the principals of equal protection. Typically we think of innate characteristics such as race, gender, and national origin as defining a class. Professions are not usually seen as suspect classifications, though you could perhaps stretch religion as a class to protect clergy as a class.

But there is a consideration to be made at the other end. If police officers do not deserve extra protection because of their profession, then should they be subject to additional criminal punishment solely due to their profession? The members of the Ohio General Assembly certainly thought so. They had passed what became R.C. 2907.03(A)(13), which stated the following:

(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: * * * (13) The other person is a minor, the offender is a peace officer, and the offender is more than two years older than the other person.

Although there has been some growing discontent about the expanding number of strict liability offenses, statutory rape is one of those strict liability offenses about which few people have problems. But this particular statute is not a blanket prohibition, it requires either the offender commit other acts or have a certain status. In fact, it had at one time required that force be used. Nor, as it is currently written, is the offense restricted to victims who are minors.

The idea of penalizing the offender due to his or her status was intended punish and hopefully deter taking advantage of the victim, by benefit of the offender’s status. And, as demonstrated above, one of those statuses was being a peace officer. This particular provision was added after a sheriff’s deputy had sex with a sixteen-year-old girl in the county vehicle. Moreover, he had met the young girl because she was a victim in a crime he was investigating. But the black robes stepped in and kyboshed the conviction.

Understandably, the public didn’t want deputies swiping left or right on police reports involving minors. Plus, taxpayers were no doubt affronted by a public employee turning a county vehicle into the Stabbin Wagon. Predictably, the General Assembly responded and closed the law enforcement sex with a minor loophole in the law.

Whether what happened next was predictable depends on your worldview; another police officer had sex with a minor. Unlike the previous case, this officer met the young girl through an actual dating app. The precocious young girl of 14 told the officer she was 18 and a high school senior.

So, when she invited this thirty-five-year-old officer to her parent’s house, he went. Then, in surely what was a beautiful moment between a teenager and an officer twice her age, they engaged in mutual oral sex in the sun room. But their chance at a happy ending was ruined when mom flipped the light on and discovered the budding elicit romance. And the officer was promptly told by mom that his Juliet was similarly underage.

The officer was charged with two offenses, including violating R.C. 2907.03(A)(13). Rather than take his medicine and eat the conviction, the officer did what every defendant wants to do, hire some lawyers and find a “loophole.” As it turned out, the criminal defense lawyers found such a loophole, by way of U.S. and Ohio Constitutions.

At first, the argument failed before the trial court. After a bench trial, the judge found the officer guilty and sentenced him to two years in prison. The officer appealed, again making his constitutional arguments; this time the court agreed. Then the state sought a discretionary appeal from the Supreme Court, hoping that the conviction would be re-instated.

In its opinion, the Supreme Court of Ohio made the equal protection clauses the centerpiece. Notably, the Supreme Court wasn’t seemingly convinced that its judgment would survive federal review, if it based its decision solely on the federal constitution. So, it made it clear that it was interpreted the state constitutional analog:

We once again reaffirm that this court, the ultimate arbiter of the meaning of the Ohio Constitution, can and will interpret our Constitution to afford greater rights to our citizens when we believe that such an interpretation is both prudent and not inconsistent with the intent of the framers.

We also reaffirm that we are not confined by the federal courts’ interpretations of similar provisions in the federal Constitution any more than we are confined by other states’ high courts’ interpretations of similar provisions in their states’ constitutions. * * *

With these understandings in mind, we turn to the question before us, which arises in the realm of equal-protection principles under both the federal and Ohio Constitutions. As explained below, we hold that R.C. 2907.03(A)(13) is violative of both.

In so holding, however, we make clear that even if we have erred in our understanding of the federal Constitution’s Equal Protection Clause, we find that the guarantees of equal protection in the Ohio Constitution independently forbid the disparate treatment of peace officers through a legislative scheme that criminalizes their sexual conduct while removing virtually all of their due-process protections, such that an officer’s conduct can constitute a criminal offense even when that conduct is not found to be illegal by a jury of the officer’s peers.

That’s a neat trick. All the more so when the court failed to engage in any analysis of how the state Constitution is to be interpreted differently or why it might be truly substantively different, and when your authorities are nearly all federal cases. But having a black robe never means having to explain yourself, especially if you have the majority.

Then in foreshadowing the coming kiss of death, the Supreme Court invoked the rational basis test for evaluating the statute. But first the General Assembly got a courteous at-a-boy:

The foregoing history demonstrates that the purpose of R.C. 2907.03 is to protect particularly vulnerable people, including minors and others who are legally unable to consent to sexual activity, from the harms that flow from sexual conduct.

Then the Court slowly drops the hammer:

But in doing so, the General Assembly focused its criminalization of sexual conduct on those who use their professional status to take unconscionable advantage of minors, except in the case of peace officers. Peace officers are liable under the statute even if they did not use their status as peace officers to identify potential victims and abuse them.

The state asserts two reasons for the legislature’s classification of peace officers without regard to whether the peace  officer uses his or her professional status to facilitate the forbidden sexual conduct: (1) holding peace officers to a higher standard to ensure integrity and to maintain the public trust and (2) protecting minors. * * *

We agree that a peace officer occupies a unique position of public trust and authority that calls for special standards and penalties in many circumstances.  (Citations omitted.)

But we do not agree that a person’s status as a peace officer justifies the imposition of different sexual-conduct standards in circumstances in which the officer’s status is irrelevant. The instant situation is just such a circumstance.

And the coup de grâce:

But none of the cited authorities stand for the proposition that singling out the occupation of police officers for differential criminal treatment is rational when it is based on nothing more than the occupation itself.

If you’re worried about this, don’t be. The Court assured us that this conduct would be enough to terminate his employment. No jail time, but your personal life and career is harmed is apparently good enough, unless you are a Stanford swimmer anyhow. Plus, in the context of the Blue Lives Matter bills Greg and I debated, this line of reasoning would make those bills something of a non-starter in Ohio.

Relatedly, the Supreme Court had the opportunity to pass on the constitutionality of another section of this statute almost ten years ago. In that case, two adults, who were step-father and step-daughter, had consensual sex, leading to the father to be charged, convicted, and labeled a sexual predator. In that case, step-father argued the law was unconstitutional, but the Court was having none of it:

Using the rational-basis test, we conclude that, as applied in this case, Ohio’s statute serves the legitimate state interest of protecting the family unit *512 and family relationships. While it is not enough under the rational-basis test for the government to just announce a noble purpose behind a statute, the statute will pass if it is reasonably related to any legitimate state purpose.

Ohio has a tradition of acknowledging the “importance of maintaining the family unit.” A sexual relationship between a parent and child or a stepparent and stepchild is especially destructive to the family unit. R.C. 2907.03(A)(5) was designed to protect the family unit by criminalizing incest in Ohio. (Internal citations omitted.)

Stopping police officers having sex with underage girls equals a rational basis. But stopping consenting adults with no biological relationship from having sex equals the lack of a rational basis.

Arguably, the difference between the two cases is the relationship (loosely) facilitated the offense in one and not the other. Okay, fine. But if the Court really cared about the facts of the case before it, it could have found it unconstitutional as an applied challenge. Instead, the Court struck down the entire section of the statute, as a facial challenge. And the dissent is right to call shenanigans:

The majority’s argument at its core is simply that the statute is arbitrary because peace officers are held criminally liable for engaging in sexual conduct with minors when that conduct is not connected with their status as peace officers. However, the proper analysis for a facial challenge of a statute using the rational-basis standard of review is not whether the statute is unconstitutional in the challenged circumstance but whether the statute can ever be applied in a constitutional manner.

The majority’s analysis must support the conclusion that the statute is “unconstitutional in all applications,” id., and it must “rebut every conceivable basis which might support it.” Instead the majority focuses its analysis on why the statute is unconstitutional when applied to appellee and his circumstances. (Internal citations omitted.)

Constitutional law isn’t for everyone or every judge.

Conceivably the General Assembly can tinker with the statute and add some limiting language, but this case presents an easy challenge to all future legislation. So, until the statute is affirmatively ruled on, it will be viewed with a suspicious eye. And, for the time being, police officers hooking up with witnesses is no longer a crime.

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