LF: Ohio Supreme Court Strikes Down Law Banning Cops from Having Sex with Minors

Title: Ohio Supreme Court Strikes Down Law Banning Cops from Having Sex with Minors
Source: From The Trenches
URL Source: http://www.fromthetrenchesworldrepo ... -having-sex-with-minors/167351
Published: Aug 2, 2016
Author: Ben Keller
Post Date: 2016-08-02 10:21:48 by Deckard
Keywords: None
Views: 1082
Comments: 8

An Ohio cop narrowly avoided being sent back to prison for having sex with a 14-year-old boy after the state supreme court ruled in his favor last week, stating that a law barring cops from having sex with minors was unconstitutional.

In the 4-3 decision, the Ohio Supreme Court determined the law violated the state’s Equal Protection Clause of both the U.S. Constitution and the Ohio Constitution because it imposed a higher standard on cops than it did for the general public.

The Ohio sexual battery law includes provisions that make it illegal for people with “established authoritarian relationships” to have sex with minors, including teachers, coaches, administrators, scout leader, clerics and police officers.

However, the court determined that police officers should not be included with the others because there is “no occupation-based relationship between the officer and the victim.”

In other words, the Ohio Supreme Court does not find it possible that a police officer would use his badge to coerce sex out of a minor.

In this case, Matthew Mole was a 35-year-old Waite Hill police officer when he met the 14-year-old boy online in 2011, who told him he was 18.

Even when Mole snuck into the boy’s house around 3 a.m. on December 11, 2011 and discovered the boy was shorter and lighter than he had described, not to mention he wore braces and had yet to begin shaving, he still believed the boy to be 18.

The two undressed and were performing oral sex on each other in an unlit sunroom in the back of the house when the boy’s mother walked in on them.

In July 2012, the boy testified that he had lied to Mole about his age and that the sex was consensual, so a jury returned with a hung verdict on the former charge because they could not prove beyond a reasonable doubt that the cop knew the boy was younger than 16, which is the legal age of consent in Ohio.

However, the following week, a judge found him guilty of the sexual battery charge because of the provision in the law that states, “No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: … 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.”

Cuyahoga County Common Pleas Judge Nancy McDonnell sentenced Mole to two years in prison in August 2012 and ordered him to register as a sex offender upon his release.

He remained in prison until July 2013 when he had the conviction reversed upon appeal.

“We agree with Mole that one’s occupation as a peace officer alone, without more, does not provide a person with an ‘unconscionable advantage’ over a minor,” wrote Judge Larry A. Jone of the Eighth Appellate District Court of Ohio in the reversal decision.

But Cuyahoga County prosecutors appealed the decision to the state supreme court.

On Thursday, the Ohio Supreme Court returned with its decision, which you can read here, affirming the appellate court’s decision in that the 2007 law was unconstitutional because it singled out cops, whose jobs, unlike teachers, administrators, coaches and clerics does not “afford offenders access to children.”

That doesn’t mean that police may engage in such acts without fear of prosecution. Other laws barring adults, including peace officers, from having sexual conduct with minors remain in place.

Writing for the court, Chief Justice Maureen O’Connor noted that provisions in the sexual battery statute that apply to a teacher or a minister or a mental health provider are different in that they require an occupational relationship with the minor. The ban for officers, according to O’Connor, required no such relationship and as such was an “arbitrarily disparate treatment of peace officers.”

{¶ 2} R.C. 2907.03 is generally a valid scheme insofar as it imposes strict liability for sexual conduct between various classes of offenders who exploit their victims through established authoritarian relationships. But subdivision (A)(13) irrationally imposes that same strict liability on peace officers even when there is no occupation-based relationship between the officer and the victim. We therefore conclude that R.C. 2907.03(A)(13) is an arbitrarily disparate treatment of peace officers that violates equal protection under the Ohio Constitution and the United States Constitution. Accordingly, we affirm the decision of the Eighth District Court of Appeals declaring R.C. 2907.03(A)(13) facially unconstitutional.

{¶ 68} The differential treatment of peace officers in this statutory scheme is based on an irrational classification. The statute not only fails to include any relationship or other element that justifies the omission of a scienter requirement, but also disparately affects peace officers in a way that bears no rational relationship to the government’s interest in protecting minors from sexual coercion by people in positions of authority who use that authority to compel submission. Having carefully considered the compelling interests at play here, the constitutional protections afforded our citizens, and the strong presumption of constitutionality that can only be overcome by a showing that the statute clearly and unequivocally violates the Constitution, we are compelled to conclude that R.C. 2907.03(A)(13) violates the Equal Protection Clause of the Ohio and United States Constitutions.

We do not condone the conduct of appellee. Nor do we easily reach our conclusion that R.C. 2907.03(A)(13) represents a “classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Romer, 517 U.S. at 635, 116 S.Ct. 1620, 134 L.Ed.2d 855.
{¶ 70} Although the government has a compelling interest in protecting minors from sexual coercion and an interest in prohibiting peace officers from abusing their authority in order to sexually exploit minors, the government cannot punish a class of professionals without making a connection between the classification and the prohibited act. We therefore affirm the judgment of the Eighth District Court of Appeals, declaring R.C. 2907.03(A)(13) to be unconstitutional on its face.

One of the dissenters is a former cop, Justice Sharon Kennedy, who believed police officer should be held to a higher standard than the general population.

Criminalizing sexual conduct between a peace officer and a minor is rationally related to a legitimate state interest because it punishes peace officers for conduct that if discovered would diminish them in the eyes of the community. If a peace officer discovered after the fact that the person with whom he engaged in sexual conduct was a minor, he would have a strong incentive to do whatever is necessary to ensure that his employer never found out, even to the point of compromising his integrity. Moreover, there is the potential for blackmail, which could lead to corrupt behavior or worse. These considerations demonstrate how the statute is rationally related to a legitimate government interest of protecting the public trust in peace officers by criminalizing conduct that is not only immoral but is fraught with the potential for corruption and exploitation.

Kennedy also argued that the court’s majority decision was wrong by citing Ohio law that “in order for a statute to be facially unconstitutional, it must be unconstitutional in all applications.”

So just because Mole did not have an occupational relationship with the 14-year-old boy does not mean other officers will not have “established authoritarian relationships” with minors, which would allow them to use that position to sexually abuse children, no different than teachers, coaches or clerics, whom the court believes have special access to children.

All we have to do is look at Police Explorer programs throughout the country in which boys and girls interested in careers in law enforcement are allowed to work with their local law enforcement agencies once they turn 14, going on ride-alongs and learning hands-on aspects of the job, which has resulted in hundreds of reported cases of sex abuse over the years.

In 2014, Cincinnati police officer Darrell Beavers was convicted for an inappropriate relationship with a 17-year-old girl he was supposed to be mentoring through the Explorer Program.

So it’s obvious that Kennedy, as a former cop, is much more aware of what takes place within police departments than the four judges who struck the law down as unconstitutional in the false belief that cops have no more power over children than the average citizen.

PINAC Publisher Carlos Miler contributed to this article

As long as there is a law on the books requiring citizens to obey any lawful order issued by a police officer, I'd say this "established authoritarian relationship" certainly does exist.

The SC in this case is basically saying that citizens are legally responsible, to the point of risking either being the subject of an unlawful sexual act OR risking a criminal violation for refusing to obey a lawful order, to understand whether a particular instruction by a police officer is lawful or not. And must do so on the spot without any opportunity to consult a lawyer. This is not the case with any of the other professions listed in the statute, where disobeying ANY instruction is never a criminal matter.

Predatory persons on the police force, knowing this, can use it to their extreme advantage.

I would expect the legislature would be able to craft a new law that addresses this ruling such that police are criminally penalized for using their badges to coerce someone into a sexual encounter.

A new law? Is there a need for yet ANOTHER new law….or is there a need to properly enforce the humongous amount of laws already on the books?

This law referenced in the article is okay as it is written, that was not the problem. The problem here was that the judge used the wrong law to sentence after a hung jury could not decide on a verdict. He could have easily sent the cop to jail using a different law.

There are a number of Ohio laws that already criminally penalized cops for improperly using their badges, not just to coerce someone into a sexual encounter. Here is but one: 4501:2-6-02 Performance of duty and conduct.

BTW, the “Yellow Journalism” article on this thread did not state that the cop never revealed to the kid the he was a cop. This was pointed out in other articles. Ergo, there was no misuse of a badge to coerce anyone here. This does not justify or excuse the cop's improper and unlawful conduct.

Neither. We certainly don't need new laws. And we certainly need to cut down the number of laws we have by 90%.

Since many of the laws we have are unwise, oppressive, foolish or unworkable, the question is: "What do we do about them while waiting to repeal them?

I think the best thing to do with bad law is to turn a blind eye to it and ignore it. Cause it to de facto lapse through non-enforcement.

But of course those whose power and employment derives from the ability to order around other people will not like that approach.