The Ohio Supreme Court just held this yesterday in In re D.B.; it’s a very important decision, and since the court expressly rested its holding on its view of the U.S. Constitution, not of the Ohio Constitution (see footnote 2 for the reason), I think there’s a substantial chance — not a certainty, but a strong likelihood, at least in the 30-40% range — that the U.S. Supreme Court will agree to consider the case.
The case involved a 12-year-old boy, D.B., who had sex with an 11-year-old boy, M.G. D.B. was charged both with forcible rape of M.G. and with statutory rape, which criminalizes any sex with someone who “is less than thirteen years of age.” (A different statute makes it a crime for an over-18-year-old to have sex with a 13-to-16-year-old, so don’t think that the general age of consent in Ohio is 13.) The juvenile court judge convicted D.B. of the statutory rape, but not of the forcible rape, gave him probation and a suspended sentence, and ordered him “to attend counseling and group therapy.”
Of course, if there was no forcible rape, then M.G. as well as D.B. would be guilty of statutory rape, since M.G. also had sex with someone (D.B.) who was “less than thirteen years of age.” The prosecutor, though, prosecuted only D.B. In this case, that prosecutorial choice was basically mandated as to most of the sexual incidents by the prosecutor’s view that the sex was forced by D.B. (One of the nine counts of the indictment was for statutory rape alone, while the others were for forcible rape or statutory rape; but even there the prosecutor might well have thought the sex was forced, like he thought it was in the other eight incidents, but just thought the evidence was inconclusive on the subject.)
But in other cases, a prosecutor who doesn’t think the sex was forcible might choose whom to prosecute based on who he thought was more culpable, or used undue but not illegal pressure. And the decision to prosecute only one of the parties might well be driven by the concern that if both are prosecuted, both will refuse to testify, and neither can be convicted (though in relatively unusual cases, such as this one, there may be third-party witnesses). Of course, a prosecutor might choose whom to prosecute based on his personal hostility to one or another party or the party’s family, or based on which case will play best in the media, or on other bases that I think are generally improper; I have great respect for most prosecutors, but there are bad people in every profession, and even good people sometimes do bad things. Still, there are certainly well-intentioned as well badly intentioned potential exercises of prosecutorial discretion in such cases.
In any event, the Ohio Supreme Court basically held that this discretionary approach to statutory rape, under which two people would routinely be guilty but the prosecutor would choose which one to prosecute, violates the federal Due Process Clause and Equal Protection Clause: The statute is “unconstitutionally vague because the statute authorizes and encourages arbitrary and discriminatory enforcement.” And, “[b]ecause D.B. and M.G. were both under the age of 13 at the time the events in this case occurred, they were both members of the class protected by the statute, and both could have been charged under the offense,” so “[a]pplication of the statute in this case to a single party violates the Equal Protection Clause’s mandate that persons similarly circumstanced shall be treated alike.” (The opinion was unanimous on the first, Due Process Clause, theory, though one judge didn’t endorse the Equal Protection Clause theory.)
If this reasoning is accepted throughout the country, the results would be sweeping. First, many states outlaw all sex — without exceptions for people close in age — not just with under-13-year-olds, but with under-16-year-olds or, in the case of California, under-18-year-olds. (Sex among 15-to-17-year-olds is a misdemeanor, in theory for both parties.) All those statutory rape laws would be cast into doubt, when applied to sex among minors who are under the age of consent. [UPDATE: I originally left then “when applied to sex among minors who are under the age of consent” implicit, since that’s what the rest of the post is discussing, but then decided to make it explicit.]
But beyond this, prosecutorial discretion (and police discretion, which I take it would be no more permissible under the court’s opinion) has, rightly or wrongly, long been a part of the American legal system. Speeding laws are routinely enforced against some but not others, since there isn’t the manpower to enforce them against everyone. In conspiracy cases, prosecutors often choose whom to prosecute for the more serious crimes and whom to prosecute for the less serious crimes, even though all the conspirators are formally guilty of all the crimes. And these choices are often based on the prosecutors’ judgments about who more deserves punishment — similar to judgments in statutory rape cases about who more deserves punishment — as well as about who is more likely to provide helpful evidence.
And the list could go on. I acknowledge that the enforcement of the statutory rape law is more necessarily linked to prosecutorial discretion than the enforcement of some other laws. But the general point remains: prosecutorial discretion, including discretion based on prosecutorial judgment about who is more morally at fault (even when everyone is legally at fault) is a routine and institutionalized aspect of the enforcement of many laws. [UPDATE: It’s generally unconstitutional to exercise such discretion in ways that discriminate based on the defendant’s race, religion, or political affiliation, or based on sex in cases where sex discrimination is constitutionally forbidden (see item 4 in the next paragraph on why that might not apply to statutory rape cases); but outside these forbidden bases for discrimination, prosecutorial discretion has long been seen as constitutionally permissible.]
States could preserve some of their ability to criminalize nonforcible underage sex by setting up clear rules about which of the parties will be prosecuted, for instance (1) the older party, (2) the party who received rather than provided genital stimulation (assuming all the conduct was oral or anal sex, and all or most of it in the relationship went one way), (3) the party that could be proven to have provided some supposedly undue inducement for the act, even if the inducement wouldn’t suffice to make the act illegal among adults, or even (4) the boy, in heterosexual contexts (see Michael M. v. Superior Court (1981)). But this would deprive prosecutors of the power to decide, based on the circumstances of each case as they see them, which party is actually the more culpable one. Perhaps prosecutors should indeed lack this power, for reasons of equality or the “rule of laws, not of men”; but it is at least sometimes a useful power, and a power that they have long been understood as having.
(It’s not clear, by the way, whether under the Ohio Supreme Court’s reasoning a statutory rape law that’s broadly applicable to both parties, but routinely enforced against only one, might be constitutional if there are constraints on prosecutors’ discretion that do not require proof beyond a reasonable doubt, for instance rules that require prosecutors to show the judge by a preponderance of the evidence that the defendant provided undue inducement to the alleged victim. The theory for the constitutionality of such a law is that it preserves the requirement of proof beyond a reasonable doubt for the elements of the offense, and prevents excessive prosecutorial discretion through the separate preponderance-of-the-evidence showing. But I’m not sure what the Ohio Supreme Court would think of that.)
Because of the scope of this ruling, because it is such a departure from the traditional view of prosecutorial power, and because it is done by a state supreme court in the name of the U.S. Constitution and not just of the state constitution, I’m inclined to think that there’s a substantial probability that the U.S. Supreme Court will hear the case. And if it does, I think most of the Justices will vote to reverse.
The Equal Protection Clause analysis in this case strikes me as easy to reverse on the facts of this case (and recall that this was an as-applied challenge, focusing on the facts of this case). The prosecutor apparently thought that D.B. and M.G. were very differently situated — he thought D.B. forced M.G. into sex, and even though the judge disagreed, the prosecutor’s belief on this point should suffice to justify the difference in treatment.
And as to the Due Process Clause, I think the U.S. Supreme Court Justices will conclude that the law contemplates only what is the traditional practice of prosecutorial discretion, that the “process” that defendants are “due” has to be determined in light of this traditional practice, and that such a traditionally accepted feature of our system therefore does not violate the Due Process Clause. That, at least, is my prediction, worth every penny you paid for it; and keep in mind that all the Justices of the Ohio Supreme Court — which, by my count, includes six Republicans and one Democrat — disagree with my analysis on this.
Thanks to How Appealing for the pointer to the Ohio Supreme Court decision.