[Cite as In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671.]




                                        IN RE D.B.
            [Cite as In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671.]
Juvenile law — R. C. 2907.02(A)(1)(b) — R.C. 2907.02(A)(1)(b) is
        unconstitutional as applied to a child under the age of 13 who engages in
        sexual conduct with another child under 13.
   (No. 2010-0240 — Submitted February 15, 2011 — Decided June 8, 2011.)
   APPEAL from the Court of Appeals for Licking County, No. 2009 CA 00024,
                                     2009-Ohio-6841.
                                  __________________
                               SYLLABUS OF THE COURT
R.C. 2907.02(A)(1)(b) is unconstitutional as applied to a child under the age of 13
        who engages in sexual conduct with another child under 13.
                                  __________________
        LANZINGER, J.
        {¶ 1} This appeal challenges the constitutionality of applying to a child
under the age of 13 the statute that defines sexual activity with a child under 13 as
rape, a first-degree felony. R.C. 2907.02(A)(1)(b). The case arises from incidents
in which two boys under 13 years of age engaged in sexual activity. Because we
hold that the statute is unconstitutional as applied in these circumstances, we
reverse.
                                  I. Case Background
        {¶ 2} On August 1, 2007, appellee, the state of Ohio, filed a complaint in
the Juvenile Division of the Court of Common Pleas of Licking County against
D.B., who was then 12 years old, charging him with nine counts of rape in
violation of R.C. 2907.02(A)(1)(b) arising from conduct occurring between him
and an 11-year-old boy, M.G. The complaint also charged D.B. with one count of
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rape in violation of R.C. 2907.02(A)(1)(b) arising from conduct occurring with
A.W., also 12 years old. All the counts alleged that D.B. was a delinquent child
under R.C. 2152.02(F).
       {¶ 3} D.B. filed a motion to dismiss the complaint, alleging that the state
could not establish sufficient evidence that he was guilty of rape and that
application of R.C. 2907.02(A)(1)(b) in this case violates his federal and state
rights to due process and equal protection because the statute is vague and
overbroad. The state subsequently filed an amended complaint, which dropped
the count related to A.W. and amended multiple counts to allege that D.B. had
engaged in forcible sexual conduct with M.G. or had used verbal threats to get
him to comply, in violation of R.C. 2907.02(A)(2).         The first count of the
amended complaint alleged only that D.B. had engaged in sexual conduct with a
person less than 13 years of age in violation of R.C. 2907.02(A)(1)(b). The
remaining eight counts alleged that D.B. had engaged in conduct with M.G. in
violation of R.C. 2907.02(A)(1)(b) or R.C. 2907.02(A)(2) (forcible sexual
conduct). Each count also alleged that D.B. was a delinquent child under R.C.
2152.02(F).
       {¶ 4} Because the court continued this matter when the complaint was
amended, an adjudicatory hearing did not commence until January 30, 2008. The
court ruled that it would reserve ruling on D.B.’s motion to dismiss until the end
of the state’s case. During the hearing, the state called Detective Donna Berryhill,
D.B.’s father Shawn B., and the minors, A.W. and M.G., to testify.
       {¶ 5} A.W. testified that he had observed D.B. and M.G. engage in anal
sex. A.W. testified that D.B. “bribed” M.G. with video games to engage in sexual
conduct. Both A.W. and M.G. stated that the sexual conduct was always initiated
by D.B. and that D.B. would either bargain with, or use physical force on, M.G. to
convince M.G. to engage in sexual conduct.




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          {¶ 6} According to A.W., D.B. and M.G. did not engage in sexual
conduct until M.G. himself agreed to the activity. D.B.’s father testified that
while D.B. was significantly bigger than other children his age, he was not an
aggressive child and he never used his size to bully or intimidate other children.
          {¶ 7} Defense counsel moved for acquittal at the conclusion of the
state’s case. The court dismissed counts 3, 4, 5, and 6 after finding that no
specific evidence existed to support them. Determining that there was no basis
for finding that D.B. had engaged in forcible sexual conduct, the court also
dismissed those portions of counts 2, 7, and 9 that alleged forcible rape. D.B.’s
motion to dismiss the counts alleging a violation of R.C. 2907.02(A)(1)(b) was
denied.
          {¶ 8} The hearing resumed on March 4, 2008. Count 1, count 8, and the
allegations of violations of R.C. 2907.02(A)(1)(b) in counts 2, 7, and 9 remained
from the amended complaint. Following the presentation of the defense’s case,
the court stated that while there was “no question whatsoever” that the sexual acts
detailed in the remaining counts took place, it could not find that D.B used force
during any of the acts. The court therefore adjudicated D.B. delinquent based on
the violation of R.C. 2907.02(A)(1)(b) alleged in counts 1, 2, 7, 8, and 9.
          {¶ 9} At the dispositional hearing, the court committed D.B. to the
Department of Youth Services for a minimum of five years to the maximum
period of his 21st birthday, suspended the commitment, and placed D.B. on
probation for an indefinite period of time. The court further ordered D.B. to
attend counseling and group therapy.
          {¶ 10} On appeal to the Fifth District Court of Appeals, D.B. argued that
application of R.C. 2907.02(A)(1)(b) violated his federal rights to due process and
equal protection, that the juvenile court abused its discretion in adjudicating him
delinquent for rape, and that the juvenile court erred in overruling a motion to
suppress statements he had made to law enforcement when he was questioned in



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his bedroom and at the sheriff’s office.1 In re D.B., Licking App. No. 2009 CA
00024, 2009-Ohio-6841, at ¶ 9-12.                    The court of appeals upheld the
constitutionality of R.C. 2907.02(A)(1)(b) as applied and held that the trial court
did not abuse its discretion in adjudicating D.B. delinquent for rape for engaging
in sexual conduct with an 11-year-old child. Id. at ¶ 23, 28.
         {¶ 11} We accepted jurisdiction over appellant’s proposition of law,
which states that application of R.C. 2907.02(A)(1)(b) to a child under the age of
13 violates the Due Process and Equal Protection Clauses of the United States and
Ohio Constitutions.2 See In re D.B., 125 Ohio St.3d 1437, 2010-Ohio-2212, 927
N.E.2d 9.
                                          II. Analysis
         {¶ 12} 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.


1. The court of appeals held that these interviews were custodial, that the statements made by
D.B. during these interviews should have been suppressed because he was not given any warnings
pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that
neither he nor his parents were informed of the potential for criminal charges. In re D.B., Licking
App. No. 2009 CA 00024, 2009-Ohio-6841, at ¶ 40-41. The court ruled, however, that the
admission of these statements was harmless because it did not affect the outcome of the trial. Id.
at ¶ 45-46. Although the interrogation methods used in this case are troubling, this issue is not
before us, and we thus refrain from further comment.

2. Because appellant argued only a violation of his federal constitutional rights of due process and
equal protection during his appeal to the Fifth District, we will not address his allegations
regarding the state constitution in this opinion.




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                                January Term, 2011




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, ¶ 17. Thus, we focus on the statute and its
particular application in an as-applied challenge.
       {¶ 13} R.C. 2907.02(A)(1)(b) criminalizes what is commonly known as
“statutory rape.” The statute holds offenders strictly liable for engaging in sexual
conduct with children under the age of 13—force is not an element of the offense
because a child under the age of 13 is legally presumed to be incapable of
consenting to sexual conduct.
       {¶ 14} R.C. 2907.02(A)(1) provides:
       {¶ 15} “No person shall engage in sexual conduct with another who is not
the spouse of the offender or who is the spouse of the offender but is living
separate and apart from the offender, when any of the following applies:
       {¶ 16} “ * * *
       {¶ 17} “(b) The other person is less than 13 years of age, whether or not
the offender knows the age of the other person.”
       {¶ 18} The statute furthers the state’s interest in protecting young
children.    Indeed, the Legislature Service Commission stated that R.C.
2907.02(A)(1)(b) was created to protect a prepubescent child from the sexual
advances of another because “engaging in sexual conduct with such a person
indicates vicious behavior on the part of the offender.” 1973 Legislative Service
Commission comments to Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866.
       {¶ 19} D.B. argues that R.C. 2907.02(A)(1)(b) is unconstitutional in two
ways. First, he argues that the statute is vague as applied to children under the
age of 13 and thus violates his right to due process. Second, he argues that the
statute was applied in an arbitrary manner in this case in contravention of his
constitutional right to equal protection. This case thus asks whether a child’s
federal constitutional rights are violated when, as a member of the class protected




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under R.C. 2907.02(A)(1)(b), he or she is adjudicated delinquent based upon a
violation of this statute.
                                 A. Due Process
        {¶ 20} 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.
        {¶ 21} “It is fundamental that a court must ‘presume the constitutionality
of lawfully enacted legislation.’ Arnold v. Cleveland (1993), 67 Ohio St.3d 35,
38, 616 N.E.2d 163, citing Univ. Hts. v. O'Leary (1981), 68 Ohio St.2d 130, 135,
22 O.O.3d 372, 429 N.E.2d 148, and Hilton v. Toledo (1980), 62 Ohio St.2d 394,
396, 16 O.O.3d 430, 405 N.E.2d 1047. * * * Accordingly, the legislation in
question ‘will not be invalidated unless the challenger establishes that it is
unconstitutional beyond a reasonable doubt.’ Id. at 39, 616 N.E.2d 163.” Klein v.
Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633, ¶ 4.
        {¶ 22} Juvenile delinquency hearings “ ‘must measure up to the essentials
of due process and fair treatment.’ ” In re Gault (1967), 387 U.S. 1, 30, 87 S.Ct.
1428, 18 L.Ed.2d 527, quoting Kent v. United States (1966), 383 U.S. 541, 562,
86 S.Ct. 1045, 16 L.Ed.2d 84.       Due process is not satisfied if a statute is
unconstitutionally vague. Skilling v. United States (2010), __ U.S. __, 130 S.Ct.
2896, 2928, 177 L.Ed.2d 619. “A statute can be impermissibly vague for either of
two independent reasons.      First, if it fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits.
Second, if it authorizes or even encourages arbitrary and discriminatory
enforcement. Chicago v. Morales, 527 U.S. 41, 56-57, 119 S.Ct. 1849, 144
L.Ed.2d 67 (1999).” Hill v. Colorado (2000), 530 U.S. 703, 732, 120 S.Ct. 2480,
147 L.Ed.2d 597.




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       {¶ 23} 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.
       {¶ 24} As applied to children under the age of 13 who engage in sexual
conduct with other children under the age of 13, R.C. 2907.02(A)(1)(b) is
unconstitutionally vague because the statute authorizes and encourages arbitrary
and discriminatory enforcement. When an adult engages in sexual conduct with a
child under the age of 13, it is clear which party is the offender and which is the
victim. But when two children under the age of 13 engage in sexual conduct with
each other, each child is both an offender and a victim, and the distinction
between those two terms breaks down.
       {¶ 25} The facts of this case provide an example of the temptation for
prosecutors to label one child as the offender and the other child as the victim.
Based apparently upon the theory that D.B. forced M.G. to engage in sexual
conduct, the state alleged that D.B., but not M.G., had engaged in conduct that



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constituted statutory rape. However, while the theory of D.B. as the aggressor
was consistent with the counts alleging a violation of R.C. 2907.02(A)(2), which
proscribes rape by force, this theory is incompatible with the counts alleging a
violation of statutory rape because anyone who engages in sexual conduct with a
minor under the age of 13 commits statutory rape regardless of whether force was
used. Thus, if the facts alleged in the complaint were true, D.B. and M.G. would
both be in violation of R.C. 2907.02(A)(1)(b).
        {¶ 26} 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.3                 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.
        {¶ 27} It must be emphasized that the concept of consent plays no role in
whether a person violates R.C. 2907.02(A)(1)(b): children under the age of 13 are
legally incapable of consenting to sexual conduct. Furthermore, whether D.B.
used force to engage in sexual conduct does not play a role in our consideration of
R.C. 2907.02(A)(1)(b).         The trial court found that D.B. did not use force.
Whether an offender used force is irrelevant to the determination whether the
offender committed rape under R.C. 2907.02(A)(1)(b).
        {¶ 28} We note that while we hold that R.C. 2907.02(A)(1)(b) is
unconstitutional as applied to a child under the age of 13 who engages in sexual
conduct with another child under the age of 13, a child under the age of 13 may be
found guilty of rape if additional elements are shown: the offender substantially
impairs the other person’s judgment or control, R.C. 2907.02(A)(1)(a); the other
person’s ability to resist or consent is substantially impaired because of a mental

3. Furthermore, the initial complaint detailed sexual conduct between D.B. and A.W., yet charged
only D.B. with rape in violation of R.C. 2907.02(A)(1)(b).




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or physical condition, R.C. 2907.02(A)(1)(c); or the offender compels the other
person to submit by force or threat of force, R.C. 2907.02(A)(2). None of those
additional elements was present here.
                               B. Equal Protection
       {¶ 29} Application of R.C. 2907.02(A)(1)(b) in this case also violates
D.B.’s federal right to equal protection. “The Equal Protection Clause directs that
‘all persons similarly circumstanced shall be treated alike.’ F.S. Royster Guano
Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).”
Plyler v. Doe (1982), 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786.
       {¶ 30} 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.
       {¶ 31} All three boys allegedly engaged in sexual conduct with a person
under the age of 13; however, only D.B. was charged with a violation of R.C.
2907.02(A)(1)(b). This arbitrary enforcement of the statute violates D.B.’s right
to equal protection. We accordingly hold that application of the statute in this
case violated D.B.’s federal equal-protection rights.            The statute is
unconstitutional as applied to him.
                                 III. Conclusion



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       {¶ 32} R.C. 2907.02(A)(1)(b) prohibits one from engaging in sexual
conduct with a person under the age of 13. As applied to offenders who are under
the age of 13 themselves, the statute is unconstitutionally vague in violation of the
Due Process Clause of the United States Constitution because arbitrary and
discriminatory enforcement is encouraged. Application of the statute in this case
also violates the Equal Protection Clause of the United States Constitution
because only one child was charged with being delinquent, while others similarly
situated were not.
       {¶ 33} We thus hold that R.C. 2907.02(A)(1)(b) is unconstitutional as
applied to a child under the age of 13 who engages in sexual conduct with another
child under 13.
                                                                 Judgment reversed
                                                               and cause remanded.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, and
MCGEE BROWN, JJ., concur.
       CUPP, J., concurs in the judgment, syllabus, and opinion of the court on the
basis of the due process analysis only.
                              __________________
       Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant
Public Defender, for appellant.
       Kenneth Oswalt, Licking County Prosecuting Attorney, and Christopher
A. Reamer, Assistant Prosecuting Attorney, for appellee.
       Juvenile Law Center, Marsha L. Levick, Lourdes M. Rosado, Jessica R.
Feierman, and Riya S. Shah; National Center for Lesbian Rights, Jody
Marksamer, and Ilona Turner; and Nadia Natasha Seeratan, urging reversal for
amici curiae Juvenile Law Center; National Juvenile Defender Center; National
Center for Lesbian Rights; Barton Child Law and Policy Center, Emory School of
Law; Children and Family Justice Center, Bluhm Legal Clinic; Juvenile Justice




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Initiative of Illinois; Midwest Juvenile Defender Center; Tamar Birkhead; Jeffrey
Fagan; Therese Glennon; Martin Guggenheim; Barry Krisberg; Elizabeth
Letourneau; and Gail Ryan.
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Phillip R.
Cummings, Assistant Prosecuting Attorney, urging affirmance for amicus curiae
Ohio Prosecuting Attorneys Association.
                             _____________________




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