The Licking County prosecutor says he intends to appeal the Ohio Supreme Court's ruling thismonth that overturned the rape conviction of a 12-year-old boy who had sex with an 11-year-oldfriend.
The news was disheartening to the boy's parents who had hoped their family's nightmare was overand that their son, now 16, could have his criminal record expunged.
The boy, identified in court records only as D.B., spent a year under house arrest. Followinghis 2008 conviction, he completed court-ordered counseling and has been released fromprobation.
"We want this to be over with. We want our son to move on," said the mother, who is not beingnamed to protect her son's identity.
"It's been four years. We're ready for this to be behind us."
But Licking County Prosecutor Ken Oswalt said the court's ruling was overly broad and unfairlyeroded prosecutors' ability to make judgment calls about a defendant's culpability in a criminalcase.
He plans to appeal the case to the U.S. Supreme Court.
"In my opinion (the court) crossed over into areas that have historically been a prosecutor'sdiscretion," Oswalt said.
He said the ruling suggests that all defendants accused of a particular fact pattern should becharged with the same crime even if their individual culpability might vary. He said past U.S.Supreme Court rulings protect a prosecutor's right to make similar judgment calls.
His concern, Oswalt said, is that the ruling could be used to attack a prosecutor's ability tomake such decisions in cases very different from the one in question.
He said the ruling takes away a tool prosecutors can use to charge juveniles with sex offenseswhen it can't be proved that a defendant used force. The way state law is written, charging ajuvenile with a crime is the only way prosecutors can enforce measures such as counseling toaddress the inappropriate behavior, Oswalt said.
Assistant Public Defender Brooke M. Burns disagreed with Oswalt's assertion that the ruling willprevent him from charging anyone under the age of 13 with rape.
The decision, she said, applies only to cases of statutory rape when all involved are under 13and when the sexual contact is consensual and no force is involved.
"Otherwise, you can't distinguish who is the offender and who is the victim," Burns said.
The case involved the two boys, who were friends and next-door neighbors and who engaged in sexduring the summer of 2007. The activity was often initiated by the older boy who gave the youngerboy video games to go along, court records showed.
In a 7-0 ruling, the Ohio Supreme Court found that consensual sex between two children under theage of 13 is not a crime under state law.
Ohio's statutory-rape law prohibits sex with someone under 13 years old. In the absence offorce, both boys were offenders and victims, the court found in a decision written by JusticeJudith Ann Lanzinger. To charge one as the perpetrator and the other as the victim is arbitrary anddiscriminatory enforcement, the decision said.
"When an adult engages in sexual conduct with a child under the age of 13, it is clear whichparty is the offender and which is the victim," Lanzinger wrote. "But when two children under theage of 13 engage in sexual conduct with each other, each child is both an offender and a victim andthe distinction between the two terms breaks down."
Oswalt has 90 days from the June 8 decision to appeal to the U.S. Supreme Court. The high courttypically takes six to eight months to decide whether to hear a case.
Meanwhile, Licking County Juvenile Court Judge Robert Hoover will decide whether to expunge theboy's conviction and seal his criminal record.
Hoover today denied Oswalt's motion asking the court not to dismiss the case until the appealprocess is completed. Hoover wrote that he did not think his court had the authority to place acase remanded by the Ohio Supreme Court on hold, and he did not feel the facts warranted holdingthe case until the appeal is decided.
Hoover set a hearing for July 15 to consider the issues.
Oswalt said he bears no ill will toward the boy and his family in this case, noting that hisdecision to appeal is only about protecting a prosecutor's right to use his or her discretion whendeciding 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 toaddress this."
ccandisky@dispatch.com
jjarman@dispatch.com
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