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Unconstitutional For Law Enforcement To Be Penalized More for Sex Crimes

Posted On: October 21st, 2016   |   Posted by: Luftman, Heck & Associates LLP

The Ohio Supreme Court recently invalidated a statute that enabled prosecutors to charge police officers with sexual battery when they had sexual contact with minors more than two years their junior. Now, police officers can only be charged with unlawful sexual contact—a less serious offense. The court ruled that it was unconstitutional for the Ohio legislature to create a more serious offense targeting only law enforcement officers.

Why is Ohio’s Sexual Battery Unconstitutional for Peace Officers?

Ohio Statute 2907.03(A)(13) prohibits sexual conduct between a minor and a peace officer that is more than two years older than the alleged victim. The law makes police officers criminally liable for the sexual contact regardless of:

  • The officers’ criminal state of mind, or mens rea, meaning that they knew the victim was underage, or were recklessly ignorant of that fact
  • Whether they used their status of authority to complete the assault
  • Whether the victim knew the assailant was a law enforcement officer

In other words, the statute creates a situation of strict criminal liability for law enforcement officers who have sexual contact with minors. Strict liability means that the criminal defendant will be considered guilty so long as there is evidence that he or she committed the prohibited act—the offender’s criminal state of mind or abuse of authority are irrelevant.

For example, the statute would apply to a plain clothed, off-duty law enforcement officer who had sexual contact with a person he or she did not know was underage. In such a situation, the officer would face harsher criminal penalties than a civilian even though the law enforcement officer’s status did not contribute in any way to the completion of the sexual battery.

The Government Can’t Make Laws that Arbitrarily Apply to Certain Classes

Making a law that criminalizes conduct independently of the suspect’s mens rea, and which creates a more severe penalty just because of the suspect’s profession creates a situation of unequal treatment under the law, which is prohibited by both the US and Ohio Constitutions.

Article I, section 2 of the Ohio Constitution states that “political power is inherent in the people. The government is instituted for their equal protection and benefit.” The fourteenth amendment to the United States Constitution reads: “[n]o state shall … deny to any person within its jurisdiction the equal protection of the laws.”

What this means is that it’s illegal for the government to create laws that target a class of individuals without there being a rational basis for singling out those individuals. For example, statutes that apply only to people previously convicted of sex crimes are legal because there is evidence that this class of individuals is more likely to commit further sexual assaults. Similarly, there are valid laws that prohibit convicted felons from owning firearms, because such individuals are more likely to commit violent crimes.

Call a Skilled Columbus Criminal Defense Attorney

At Luftman, Heck & Associates LLP, we are dedicated to providing our clients with a creative, aggressive, and effective approach to their defense. Our Columbus criminal defense attorneys fight for our clients’ rights at every stage of the criminal justice process to ensure that they obtain the best outcomes possible.

If you’re facing charges in Ohio, call us today at (614) 500-3836 or online for a free and confidential consultation of your case.

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