The problem with statutory rape laws

Originally posted on June 21, 2011 

Statutory rape laws were designed to address cases in which an adult with a minor due to the potential for the adult manipulating or coercing the minor into sex. These laws were intended to cover severe age differences, such as 35-year-old adult and a 16-year-old child. However, these laws are also applied to sex activities between minors, often resulting in unethical and unfair consequences. Case in point:

A father’s desperate call to find help for his 12-year-old son triggered consequences for his family that he never imagined – his only son’s charge of rape, the breakup of his marriage and a costly, four-year legal battle for justice that went all the way to the Ohio Supreme Court.

“I feel responsible for it, because I made that phone call,” the father said, his eyes welling with tears. “It was the worst phone call I made in my entire life. I should have never called.”

“We didn’t know,” his ex-wife said, “that our son could be taken from us and put away (as) this major criminal.”

In a unanimous decision this month, the high court overturned the son’s conviction, declaring what the parents and their attorneys had told police and prosecutors all along: There was no crime. The victory was a relief, but the guilt and pain of their ordeal still run deep.

This all resulted from an incident in 2007 in which the boy and couple of other boys engaged in sex acts. A neighbor told the boy’s parents about the sex, and his father called Child Services to get some help. Child Services reported the case to the police as an instance of sexual abuse, and the police proceeded to trick the parents: 

The detective “comes and she is our friend and it’s going to be OK, this kind of thing happens all the time and we’ll just write some things down and talk with (your son) and the other boys, it just sounds like boys experimenting. … The (other boys’) parents show up on our porch and give their side, and she comes back in and says it all sounds consensual.”

They allowed the detective to talk with their son privately and agreed to come to the sheriff’s office the next day to give a statement and discuss counseling. “We went to bed feeling a little better; it was going to be OK,” the mother said.

But it wasn’t.

Shortly after they got to the sheriff’s office, both parents felt uneasy. The caseworker seemed rude. Still, when a detective asked to speak again with their son privately, they agreed.

“Then they come and get us and sat us down and said, ‘Well, we just want to let you know that we are charging (your son) with 10 counts of felony first-degree rape and he’s under arrest,'” the mother said, her voice cracking with emotion. “They come in and put him in handcuffs right in front of us.”

Nothing seemed to suggest that there was anything justifying 10 counts of first-degree rape. Eventually the state dropped the charges down to statutory rape. Children experiment with sex. It seems like in this case the boy basically bribed the other boys into sex. While that is bad behavior, it is not criminal. The article does not state whether the other parents wanted to press charges. Given the father’s comments, it would appear that they did not.

The prosecutors have an obvious problem: other boys were involved, yet none of them faced charges. The prosecutor explained this away:

[Licking County Prosecutor Ken]Oswalt said his office files criminal charges because it’s the only way under the law to ensure that those involved get counseling or other help. In such cases, prosecutors use their best judgment to determine who is culpable and what charges to file.

Charging all three boys “is a ridiculous suggestion,” he said. “Who are you going to put on to testify against the other? We sometimes need help from one to get the other.”

He said the ruling will make it impossible to charge children younger than 13 with statutory rape even in blatant instances such as when the other child involved is 2, as in a case currently under investigation.


Prosecutors said they charged him and not the others because he initiated the conduct and bribed his friends. He also was larger, and one boy at times refused to participate but relented, they said.

The Ohio Supreme Court’s decision to overturn the conviction was 7-0. That is a fairly rare occurrence, and it demonstrates how idiotic these laws are. The Court offered the following remarks:

The high court found that the law is “unconstitutionally vague and violates the right to equal protection” when applied to one child and not others involved if all are younger than 13.

“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,” Lanzinger wrote.

But apparently Oswalt does not agree with the Supreme Court’s decision:

He said the ruling will make it impossible to charge children younger than 13 with statutory rape even in blatant instances such as when the other child involved is 2, as in a case currently under investigation.

That is nice hyperbolic language, but it is far from true. The Court’s decision is clear that it the laws are vague and create a problem when children around the same age. What Osawlt misses is the underlying contradiction. If no child under a given age can consent, the accused child under that given age also cannot consent. Obviously this would not apply to cases involving 12-year-olds and toddlers. However, in cases involving children around the same age it is unreasonable and unethical to charge one child and not the other without some explanation beyond one child being older, bigger, and initiating the contact.

Oswalt does have one valid point: the ruling will effect new cases, hopefully by requiring prosecutors to justify their reasoning for bring charges against one child and not the other or filing charges to begin with.


11 thoughts on “The problem with statutory rape laws

  1. I dont know if this has anything to do with the problem in statutory rape laws, or if this is just a ridiculous case where the prosecutors handled it INCEDABLY wrong!
    I think the prosecutor should be disbarred for what he did. Nothing about that could possible be legal. You cant just make up what a law says to charge someone. It would be rape if the other boys hadnt consented (consented within reason, legally you cant consent if your underage) and it would be statutory rape if they hadnt been in all the same age group.
    If they all had sex will under the age of consent than either there is no case to be made, provide counciling as the family wished, or charge every individual involved because if your going to try and make a case out of this you’d better respect that everyone has equal protection under the law and one individual cant be singled out.

    Ridiculous case and I think you could disbar that prosecutor.

  2. What an absolute scumbag. Oswalt claims that he bears the boy no ill-will, but Oswalt’s actions, if successful, would result in the boy’s record remaining as it is.

  3. You know what this is all about.
    Prosecutors look good, get paid more, and keep their jobs when they get convictions.
    You know what happens when a prosecutor is called out by the courts for handling a rape case badly, they look bad, REALLY BAD.
    He is doing this because he had his pants pulled down in front of all his bosses (the citizens who gave him his job) and his friends.
    Its a desprate attampt to try and not look like a degenerate.
    Its disgusting.

  4. “Oswalt said he bears no ill will toward the boy and his family in this case, noting that his decision to appeal is only about protecting a prosecutor’s right to use his or her discretion when deciding which charges to pursue in a criminal case.

    “I wish D.B. and his family well,” Oswalt said. “I wish there was a mechanism in Ohio law to address this.”

    That last statement is where the prosecutor should focus his attention. The court overturned the conviction because the law was vague and unfairly enforced, not because the issues can’t be addressed. If he truly holds no malice towards the boy, he should be lobbying the legislature for changes to the law that would correct the problems including his discretion to prosecute. A better written law would not likely have been overturned, then again, a better written law would likely have protected the boy from the prosecutor in the first place.


  5. He said the ruling will make it impossible to charge children younger than 13 with statutory rape even in blatant instances such as when the other child involved is 2, as in a case currently under investigation.

    It’s cute how shameless people can be in admitting that no possible abuse by government, courts or police is as bad as a single crime by a citizen going unpunished.

  6. Followup: I started regretting that comment shortly after posting it. I apparently need to focus more on contribution to discussion rather than circlejerking if I comment in the future.

  7. anon295, your comment gets right to the heart of the mentality that is at the core of this type of abuse. Yu basically took the words, to include the tone, right out of my mouth.

  8. I’m not sure the statuatory rape laws were meant to cover “extreme age differences”, otherwise, why not simply outlaw all sex where partners are a certain age differential from each other. After all, 40 and 18 (or in some states 40 and 16) is legal and 40-18 is a greater difference than 35-16.

    It would be more to the point that the laws exist to keep consensual sex between partners who have mature attitudes towards sex.

  9. As for this prosecution:
    What an egregious waste of resources and an utter injustice to a 12 year old boy. We go easier on child criminals (and teens in some cases too) because we recognize they are not mature and, in the case of extremely young kids can’t even necessarily understand what they did wrong. This was consensual sexual experimentation with children of around his age range, this wasn’t something coerced. And as for the prosecutor, perhaps had he used his discretion when prosecuting these types of cases responsibly, he wouldn’t have to worry about a 12 year old and a 2 year old. As it is, the legislation needs tightened up, and rewritten and honestly, unless force or coercion is involved the legal responses should all be a non-punitive nature.

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