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Ohio Supreme Court Invalidates Part of Gross Sexual Imposition Law

A recent decision by the Ohio Supreme Court invalidated part of the state’s gross sexual imposition law as unconstitutional.

The part of the law that was struck down by the court provides for a mandatory prison term when there is evidence to support the charge other than the victim’s testimony. However, the court found in State v. Bevly, Slip Opinion No. 2015-Ohio-475, (Feb. 11, 2015), that the mandatory prison term provision violated the defendant’s Fifth and Fourteenth Amendment due process rights, and his Sixth and Fourteenth Amendment rights to a jury trial.

In Bevly, the defendant had pleaded guilty to two counts of gross sexual imposition of a minor under age 13. Essentially, gross sexual imposition is non-consensual sexual contact through the use of force, threats, coercion, or impairing someone with alcohol or drugs. The offense is a third-degree felony, which typically is punishable under Ohio Rev. Code 2929.14 with a sentence in the range of 1 to 5 years.

Under Ohio Rev. Code 2907.05(C)(2), when the victim is a minor under age 13, there typically is a presumption of a prison term. However, a court is required to impose a 5-year prison term under certain circumstances, including when there is evidence other than the victim’s testimony. In this case, police had a recording in which Bevly confessed to the crime. The court sentenced Bevly to 3 years in prison and 5 years of post-release supervision. Prosecutors appealed because Bevly hadn’t been sentenced to 5 years in prison. The 10th District Court of Appeals reversed the trial court’s decision, and Bevly then appealed to the Ohio Supreme Court.

The Ohio Supreme Court found that Ohio Rev. Code 2907.05 unconstitutionally creates two different penalties for people who commit the same crime, and the different penalties are based solely on the amount of evidence presented in the case — not on factors such as the severity of the crime or whether the defendant is likely to re-offend.

The court found that distinction arbitrary and unique in Ohio criminal law, and that the amount of evidence of someone’s guilty is irrelevant to the person’s sentence when convicted. The court found that the mandatory enhanced sentence for additional evidence violated defendants’ due process and equal protection rights under the Fifth and Fourteenth Amendments.

Essentially it’s now the law in Ohio that when two people are convicted of the same offense, and one is found guilty solely based on witness testimony, while the other is found guilty based on witness testimony plus DNA evidence for example, the penalty can’t be mandated to be different for the second person just because there’s the addition of DNA evidence.

If you’ve been charged with a crime, the experienced Columbus criminal defense lawyers at Luftman, Heck & Associates offer a free consultation to discuss your charge and your options for a defense. Call us today at for an appointment.

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