Ohio Court Strikes Down Ban on “Lur[ing]” Under-14-Year-Olds to Accompany Person Without Parent’s Permission

From State v. [John D.] Goode (Ohio Ct. App. Feb. 20, 2013):

Mr. Goode was convicted of violating R.C. 2905.05(A), which provides,

No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:

(1) The actor does not have the express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.

(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor’s lawful duties in that capacity.

… Undoubtedly, R.C. 2905.05(A) has an admirable purpose, which is “to prevent child abductions or the commission of lewd acts with children.” However, … “[t]he common, ordinary meaning of the word ‘solicit’ encompasses ‘merely asking.’” “R.C. 2905.05(A) fails to require that the prohibited solicitation occur with the intent to commit any unlawful act.”

For example, parents picking up their child from school would theoretically violate R.C. 2905.05(A) merely by asking their child’s friend if he or she wanted a ride home. Because there is no requirement that a person have ill-intent when asking the child to accompany him or her, R.C. 2905.05(A) prohibits a wide variety of speech and association far beyond the statute’s purpose of safeguarding children. Other states with similar statutes at least require illicit intent. For example, a Florida statute prohibits a person from luring a child “into a structure, dwelling, or conveyance for other than a lawful purpose ….” …

We are also unable to conclude that R.C. 2905.05(C) saves the statute from being overbroad. R.C. 2905.05(C) provides: “It is an affirmative defense to a charge under division (A) of this section that the actor undertook the activity in response to a bona fide emergency situation or that the actor undertook the activity in a reasonable belief that it was necessary to preserve the health, safety, or welfare of the child.” One supposes that, in the scenario where a parent picking up his or her child offers another child a ride home, the parent could argue that the offer was made to preserve the health, safety, or welfare of the child rather than leaving him or her unsupervised. However, even if the affirmative defense would arguably protect Good Samaritan parents, it still would not protect a child asking another child to go to an after-school event or on a bike ride. These are very basic societal interactions going to the very idea of speech and association. By prohibiting these, the statute necessarily infringes on protected speech and conduct.

Nevertheless, the State argues that the sweeping nature of R.C. 2905.05(A) is not problematic because “a police officer can distinguish between innocent behavior and criminal behavior under the statute.” In other words, the State urges us to ignore the breadth of the statute because it can be selectively enforced. Even if the statute did grant the police the discretion to determine what was illegal and what was legal, similar grants of discretion to police officers have consistently been found to be unconstitutional….

R.C. 2905.05(A) prohibits a broad range of speech and conduct far beyond its intention to protect children from abductors. For this reason, we cannot conclude that the statute passes constitutional review because it is overbroad.

For an earlier Ohio case reaching a similar result, see State v. Chapple (Ohio Ct. App. 2008). For a Pennsylvania Supreme Court case interpreting a similar Pennsylvania statute narrowly to avoid its being unconstitutional, see this 2011 post.