One child who is 12 years old and another who is 11 years old engage in sexual activity. One of them is charged in juvenile with rape in the first degree for having sex with someone under 13. The other is not.
Those are the facts in the Ohio Supreme Court opinion, In re: D.B.. The Ohio court found both a due process vagueness as-applied problem and an equal protection problem. Here are a few choice quotes from that opinion.
- D.B. does not assert that R.C. 2907.02(A)(1)(b) is unconstitutional on its face, meaning that it can never be applied without violating constitutional rights, but asserts that it is unconstitutional as applied to him. "A statute may be challenged as unconstitutional on the basis that it is invalid on its face or as applied to a particular set of facts. See, e.g., United States v. Eichman (1990), 496 U.S. 310, 312, 110 S.Ct. 2404, 110 L.Ed.2d 287. In an as-applied challenge, the challenger 'contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, [is] unconstitutional.' Ada v. Guam Soc. of Obstetricians & Gynecologists (1992), 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (Scalia, J., dissenting)." State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512. Thus, we focus on the statute and its particular application in an as-applied challenge.
First, due process.
- D.B. argues that R.C. 2907.02(A)(1)(b) is unconstitutional as applied to him because it fails to provide guidelines that designate which actor is the victim and which is the offender, resulting in arbitrary and discriminatory enforcement.
The dangers of vagueness.
- The United States Supreme Court has identified the second reason as the primary concern of the vagueness doctrine: "[T]he more important aspect of vagueness doctrine 'is not actual notice, but the other principal element of the doctrine - the requirement that a legislature establish minimal guidelines to govern law enforcement.' Smith [v. Goguen (1974)], 415 U.S. [566, 574, 94 S.Ct. 1242, 39 L.Ed.2d 605]. * * * Where the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.' Id., at 575, 94 S.Ct., at 1248." Kolender v. Lawson (1983), 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903. This prong of the vagueness doctrine not only upholds due process, but also serves to protect the separation of powers: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government." United States v. Reese (1876), 92 U.S. 214, 221, 23 L.Ed. 563.
- The prosecutor's choice to charge D.B. but not M.G. is the very definition of discriminatory enforcement. D.B. and M.G. engaged in sexual conduct with each other, yet only D.B. was charged. The facts of this case demonstrate that R.C. 2907.02(A)(1)(b) authorizes and encourages arbitrary and discriminatory enforcement when applied to offenders under the age of 13. The statute is thus unconstitutionally vague as applied to this situation.
As for Equal Protection. . . .
- The plain language of the statute makes it clear that every person who engages in sexual conduct with a child under the age of 13 is strictly liable for statutory rape, and the statute must be enforced equally and without regard to the particular circumstances of an individual's situation. R.C. 2907.02(A)(1)(b) offers no prosecutorial exception to charging an offense when every party involved in the sexual conduct is under the age of 13; conceivably, the principle of equal protection suggests that both parties could be prosecuted as identically situated. Because 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. Application 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.