When two kids under 13 have sex, they can’t be charged with rape but can they be charged with other sex crimes?
The Ohio Supreme Court will consider that question next week when it hears arguments on a Franklin County case
The Franklin County Juvenile Court concluded that applying Ohio’s gross sexual imposition law to minors under 13 is unconstitutional but that decision was overturned when the county prosecutor appealed it.
In 2013, a 12-year-old identified as D.S. engaged in intercourse with a nearly 10-year-old identified as D.M. The two boys lived in the same household with the father of D.S. and the mother of D.M.
The juvenile court judge ruled that it would be unconstitutional to charge D.S., dismissed the case and ordered treatment for both children. On appeal, the 10th District Court of Appeals in a 2-1 decision sided with the prosecutor’s argument that a previous supreme court ruling barring children from being charged with rape didn’t apply if they were charged with gross sexual imposition.
GSI requires sexual contact for gratification or arousal. Sexual conduct, a key element of rape, requires engaging in a sex act without privilege to do so.
The appeals court ruled that it could have been found that D.S. acted for sexual gratification while D.M. did not. The prosecutor argued that the juvenile court dismissed the case too early in the process.
The case is one of eight set for oral argument on May 16 and 17 before the Ohio Supreme Court.