[Cite as In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671.] 

IN RE D.B. 

[Cite as In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671.] 

Juvenile law — R. C. 2907.02(A)(1)(b) — R.C. 2907.02(A)(1)(b) is 

unconstitutional as applied to a child under the age of 13 who engages in 

sexual conduct with another child under 13. 

(No. 2010-0240 — Submitted February 15, 2011 — Decided June 8, 2011.) 

APPEAL from the Court of Appeals for Licking County, No. 2009 CA 00024, 

2009-Ohio-6841. 

__________________ 

SYLLABUS OF THE COURT

R.C. 2907.02(A)(1)(b) is unconstitutional as applied to a child under the age of 13 

who engages in sexual conduct with another child under 13. 

__________________ 

 LANZINGER, J.

{¶ 1} This appeal challenges the constitutionality of applying to a child 

under the age of 13 the statute that defines sexual activity with a child under 13 as 

rape, a first-degree felony. R.C. 2907.02(A)(1)(b). The case arises from incidents 

in which two boys under 13 years of age engaged in sexual activity. Because we 

hold that the statute is unconstitutional as applied in these circumstances, we 

reverse. 

I. Case Background 

{¶ 2} On August 1, 2007, appellee, the state of Ohio, filed a complaint in 

the Juvenile Division of the Court of Common Pleas of Licking County against 

D.B., who was then 12 years old, charging him with nine counts of rape in 

violation of R.C. 2907.02(A)(1)(b) arising from conduct occurring between him 

and an 11-year-old boy, M.G. The complaint also charged D.B. with one count of 
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rape in violation of R.C. 2907.02(A)(1)(b) arising from conduct occurring with 

A.W., also 12 years old. All the counts alleged that D.B. was a delinquent child 

under R.C. 2152.02(F). 

{¶ 3} D.B. filed a motion to dismiss the complaint, alleging that the state 

could not establish sufficient evidence that he was guilty of rape and that 

application of R.C. 2907.02(A)(1)(b) in this case violates his federal and state 

rights to due process and equal protection because the statute is vague and 

overbroad. The state subsequently filed an amended complaint, which dropped 

the count related to A.W. and amended multiple counts to allege that D.B. had 

engaged in forcible sexual conduct with M.G. or had used verbal threats to get 

him to comply, in violation of R.C. 2907.02(A)(2). The first count of the 

amended complaint alleged only that D.B. had engaged in sexual conduct with a 

person less than 13 years of age in violation of R.C. 2907.02(A)(1)(b). The 

remaining eight counts alleged that D.B. had engaged in conduct with M.G. in 

violation of R.C. 2907.02(A)(1)(b) or R.C. 2907.02(A)(2) (forcible sexual 

conduct). Each count also alleged that D.B. was a delinquent child under R.C. 

2152.02(F). 

{¶ 4} Because the court continued this matter when the complaint was 

amended, an adjudicatory hearing did not commence until January 30, 2008. The 

court ruled that it would reserve ruling on D.B.’s motion to dismiss until the end 

of the state’s case. During the hearing, the state called Detective Donna Berryhill, 

D.B.’s father Shawn B., and the minors, A.W. and M.G., to testify. 

{¶ 5} A.W. testified that he had observed D.B. and M.G. engage in anal 

sex. A.W. testified that D.B. “bribed” M.G. with video games to engage in sexual 

conduct. Both A.W. and M.G. stated that the sexual conduct was always initiated 

by D.B. and that D.B. would either bargain with, or use physical force on, M.G. to 

convince M.G. to engage in sexual conduct. 
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{¶ 6} According to A.W., D.B. and M.G. did not engage in sexual 

conduct until M.G. himself agreed to the activity. D.B.’s father testified that 

while D.B. was significantly bigger than other children his age, he was not an 

aggressive child and he never used his size to bully or intimidate other children. 

{¶ 7} Defense counsel moved for acquittal at the conclusion of the 

state’s case. The court dismissed counts 3, 4, 5, and 6 after finding that no 

specific evidence existed to support them. Determining that there was no basis 

for finding that D.B. had engaged in forcible sexual conduct, the court also 

dismissed those portions of counts 2, 7, and 9 that alleged forcible rape. D.B.’s 

motion to dismiss the counts alleging a violation of R.C. 2907.02(A)(1)(b) was 

denied. 

{¶ 8} The hearing resumed on March 4, 2008. Count 1, count 8, and the 

allegations of violations of R.C. 2907.02(A)(1)(b) in counts 2, 7, and 9 remained 

from the amended complaint. Following the presentation of the defense’s case, 

the court stated that while there was “no question whatsoever” that the sexual acts 

detailed in the remaining counts took place, it could not find that D.B used force 

during any of the acts. The court therefore adjudicated D.B. delinquent based on 

the violation of R.C. 2907.02(A)(1)(b) alleged in counts 1, 2, 7, 8, and 9. 

{¶ 9} At the dispositional hearing, the court committed D.B. to the 

Department of Youth Services for a minimum of five years to the maximum 

period of his 21st birthday, suspended the commitment, and placed D.B. on 

probation for an indefinite period of time. The court further ordered D.B. to 

attend counseling and group therapy. 

{¶ 10} On appeal to the Fifth District Court of Appeals, D.B. argued that 

application of R.C. 2907.02(A)(1)(b) violated his federal rights to due process and 

equal protection, that the juvenile court abused its discretion in adjudicating him 

delinquent for rape, and that the juvenile court erred in overruling a motion to 

suppress statements he had made to law enforcement when he was questioned in 
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his bedroom and at the sheriff’s office.1

 In re D.B., Licking App. No. 2009 CA 

00024, 2009-Ohio-6841, at ¶ 9-12. The court of appeals upheld the 

constitutionality of R.C. 2907.02(A)(1)(b) as applied and held that the trial court 

did not abuse its discretion in adjudicating D.B. delinquent for rape for engaging 

in sexual conduct with an 11-year-old child. Id. at ¶ 23, 28. 

{¶ 11} We accepted jurisdiction over appellant’s proposition of law, 

which states that application of R.C. 2907.02(A)(1)(b) to a child under the age of 

13 violates the Due Process and Equal Protection Clauses of the United States and 

Ohio Constitutions.2

 See In re D.B., 125 Ohio St.3d 1437, 2010-Ohio-2212, 927 

N.E.2d 9. 

II. Analysis 

{¶ 12} D.B. does not assert that R.C. 2907.02(A)(1)(b) is unconstitutional 

on its face, meaning that it can never be applied without violating constitutional 

rights, but asserts that it is unconstitutional as applied to him. “A statute may be 

challenged as unconstitutional on the basis that it is invalid on its face or as 

applied to a particular set of facts. See, e.g., United States v. Eichman (1990), 496 

U.S. 310, 312, 110 S.Ct. 2404, 110 L.Ed.2d 287. In an as-applied challenge, the 

challenger ‘contends that application of the statute in the particular context in 

which he has acted, or in which he proposes to act, [is] unconstitutional.’ Ada v. 

Guam Soc. of Obstetricians & Gynecologists (1992), 506 U.S. 1011, 113 S.Ct. 

 

1. The court of appeals held that these interviews were custodial, that the statements made by 

D.B. during these interviews should have been suppressed because he was not given any warnings 

pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that 

neither he nor his parents were informed of the potential for criminal charges. In re D.B., Licking 

App. No. 2009 CA 00024, 2009-Ohio-6841, at ¶ 40-41. The court ruled, however, that the 

admission of these statements was harmless because it did not affect the outcome of the trial. Id. 

at ¶ 45-46. Although the interrogation methods used in this case are troubling, this issue is not 

before us, and we thus refrain from further comment. 

2. Because appellant argued only a violation of his federal constitutional rights of due process and 

equal protection during his appeal to the Fifth District, we will not address his allegations 

regarding the state constitution in this opinion. 
January Term, 2011 

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633, 121 L.Ed.2d 564 (Scalia, J., dissenting).” State v. Lowe, 112 Ohio St.3d 507, 

2007-Ohio-606, 861 N.E.2d 512, ¶ 17. Thus, we focus on the statute and its 

particular application in an as-applied challenge.

{¶ 13} R.C. 2907.02(A)(1)(b) criminalizes what is commonly known as 

“statutory rape.” The statute holds offenders strictly liable for engaging in sexual 

conduct with children under the age of 13—force is not an element of the offense 

because a child under the age of 13 is legally presumed to be incapable of 

consenting to sexual conduct. 

{¶ 14} R.C. 2907.02(A)(1) provides: 

{¶ 15} “No person shall engage in sexual conduct with another who is not 

the spouse of the offender or who is the spouse of the offender but is living 

separate and apart from the offender, when any of the following applies: 

{¶ 16} “ * * * 

{¶ 17} “(b) The other person is less than 13 years of age, whether or not 

the offender knows the age of the other person.” 

{¶ 18} The statute furthers the state’s interest in protecting young 

children. Indeed, the Legislature Service Commission stated that R.C. 

2907.02(A)(1)(b) was created to protect a prepubescent child from the sexual 

advances of another because “engaging in sexual conduct with such a person 

indicates vicious behavior on the part of the offender.” 1973 Legislative Service 

Commission comments to Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866. 

{¶ 19} D.B. argues that R.C. 2907.02(A)(1)(b) is unconstitutional in two 

ways. First, he argues that the statute is vague as applied to children under the 

age of 13 and thus violates his right to due process. Second, he argues that the 

statute was applied in an arbitrary manner in this case in contravention of his 

constitutional right to equal protection. This case thus asks whether a child’s 

federal constitutional rights are violated when, as a member of the class protected 
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under R.C. 2907.02(A)(1)(b), he or she is adjudicated delinquent based upon a 

violation of this statute. 

A. Due Process 

{¶ 20} D.B. argues that R.C. 2907.02(A)(1)(b) is unconstitutional as 

applied to him because it fails to provide guidelines that designate which actor is 

the victim and which is the offender, resulting in arbitrary and discriminatory 

enforcement. 

{¶ 21} “It is fundamental that a court must ‘presume the constitutionality 

of lawfully enacted legislation.’ Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 

38, 616 N.E.2d 163, citing Univ. Hts. v. O'Leary (1981), 68 Ohio St.2d 130, 135, 

22 O.O.3d 372, 429 N.E.2d 148, and Hilton v. Toledo (1980), 62 Ohio St.2d 394, 

396, 16 O.O.3d 430, 405 N.E.2d 1047. * * * Accordingly, the legislation in 

question ‘will not be invalidated unless the challenger establishes that it is 

unconstitutional beyond a reasonable doubt.’ Id. at 39, 616 N.E.2d 163.” Klein v. 

Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633, ¶ 4. 

{¶ 22} Juvenile delinquency hearings “ ‘must measure up to the essentials 

of due process and fair treatment.’ ” In re Gault (1967), 387 U.S. 1, 30, 87 S.Ct. 

1428, 18 L.Ed.2d 527, quoting Kent v. United States (1966), 383 U.S. 541, 562, 

86 S.Ct. 1045, 16 L.Ed.2d 84. Due process is not satisfied if a statute is 

unconstitutionally vague. Skilling v. United States (2010), __ U.S. __, 130 S.Ct. 

2896, 2928, 177 L.Ed.2d 619. “A statute can be impermissibly vague for either of 

two independent reasons. First, if it fails to provide people of ordinary 

intelligence a reasonable opportunity to understand what conduct it prohibits. 

Second, if it authorizes or even encourages arbitrary and discriminatory 

enforcement. Chicago v. Morales, 527 U.S. 41, 56-57, 119 S.Ct. 1849, 144 

L.Ed.2d 67 (1999).” Hill v. Colorado (2000), 530 U.S. 703, 732, 120 S.Ct. 2480, 

147 L.Ed.2d 597. 
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{¶ 23} The United States Supreme Court has identified the second reason 

as the primary concern of the vagueness doctrine: “[T]he more important aspect 

of vagueness doctrine ‘is not actual notice, but the other principal element of the 

doctrine — the requirement that a legislature establish minimal guidelines to 

govern law enforcement.’ Smith [v. Goguen (1974)], 415 U.S. [566, 574, 94 S.Ct. 

1242, 39 L.Ed.2d 605]. * * * Where the legislature fails to provide such minimal 

guidelines, a criminal statute may permit ‘a standardless sweep [that] allows 

policemen, prosecutors, and juries to pursue their personal predilections.’ Id., at 

575, 94 S.Ct., at 1248.” Kolender v. Lawson (1983), 461 U.S. 352, 358, 103 S.Ct. 

1855, 75 L.Ed.2d 903. This prong of the vagueness doctrine not only upholds due 

process, but also serves to protect the separation of powers: “It would certainly 

be dangerous if the legislature could set a net large enough to catch all possible 

offenders, and leave it to the courts to step inside and say who could be rightfully 

detained, and who should be set at large. This would, to some extent, substitute 

the judicial for the legislative department of the government.” United States v. 

Reese (1876), 92 U.S. 214, 221, 23 L.Ed. 563. 

{¶ 24} As applied to children under the age of 13 who engage in sexual 

conduct with other children under the age of 13, R.C. 2907.02(A)(1)(b) is 

unconstitutionally vague because the statute authorizes and encourages arbitrary 

and discriminatory enforcement. When an adult engages in sexual conduct with a 

child under the age of 13, it is clear which party is the offender and which is the 

victim. But when two children under the age of 13 engage in sexual conduct with 

each other, each child is both an offender and a victim, and the distinction 

between those two terms breaks down. 

{¶ 25} The facts of this case provide an example of the temptation for 

prosecutors to label one child as the offender and the other child as the victim. 

Based apparently upon the theory that D.B. forced M.G. to engage in sexual 

conduct, the state alleged that D.B., but not M.G., had engaged in conduct that 
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constituted statutory rape. However, while the theory of D.B. as the aggressor 

was consistent with the counts alleging a violation of R.C. 2907.02(A)(2), which 

proscribes rape by force, this theory is incompatible with the counts alleging a 

violation of statutory rape because anyone who engages in sexual conduct with a 

minor under the age of 13 commits statutory rape regardless of whether force was 

used. Thus, if the facts alleged in the complaint were true, D.B. and M.G. would 

both be in violation of R.C. 2907.02(A)(1)(b). 

{¶ 26} The prosecutor’s choice to charge D.B. but not M.G. is the very 

definition of discriminatory enforcement. D.B. and M.G. engaged in sexual 

conduct with each other, yet only D.B. was charged.3

 The facts of this case 

demonstrate that R.C. 2907.02(A)(1)(b) authorizes and encourages arbitrary and 

discriminatory enforcement when applied to offenders under the age of 13. The 

statute is thus unconstitutionally vague as applied to this situation. 

{¶ 27} It must be emphasized that the concept of consent plays no role in 

whether a person violates R.C. 2907.02(A)(1)(b): children under the age of 13 are 

legally incapable of consenting to sexual conduct. Furthermore, whether D.B. 

used force to engage in sexual conduct does not play a role in our consideration of 

R.C. 2907.02(A)(1)(b). The trial court found that D.B. did not use force. 

Whether an offender used force is irrelevant to the determination whether the 

offender committed rape under R.C. 2907.02(A)(1)(b). 

{¶ 28} We note that while we hold that R.C. 2907.02(A)(1)(b) is 

unconstitutional as applied to a child under the age of 13 who engages in sexual 

conduct with another child under the age of 13, a child under the age of 13 may be 

found guilty of rape if additional elements are shown: the offender substantially 

impairs the other person’s judgment or control, R.C. 2907.02(A)(1)(a); the other 

person’s ability to resist or consent is substantially impaired because of a mental 

 

3. Furthermore, the initial complaint detailed sexual conduct between D.B. and A.W., yet charged 

only D.B. with rape in violation of R.C. 2907.02(A)(1)(b). 
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or physical condition, R.C. 2907.02(A)(1)(c); or the offender compels the other 

person to submit by force or threat of force, R.C. 2907.02(A)(2). None of those 

additional elements was present here. 

B. Equal Protection 

{¶ 29} Application of R.C. 2907.02(A)(1)(b) in this case also violates 

D.B.’s federal right to equal protection. “The Equal Protection Clause directs that 

‘all persons similarly circumstanced shall be treated alike.’ F.S. Royster Guano 

Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).” 

Plyler v. Doe (1982), 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786. 

{¶ 30} The plain language of the statute makes it clear that every person 

who engages in sexual conduct with a child under the age of 13 is strictly liable 

for statutory rape, and the statute must be enforced equally and without regard to 

the particular circumstances of an individual’s situation. R.C. 2907.02(A)(1)(b) 

offers no prosecutorial exception to charging an offense when every party 

involved in the sexual conduct is under the age of 13; conceivably, the principle 

of equal protection suggests that both parties could be prosecuted as identically 

situated. Because 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. Application 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. 

{¶ 31} All three boys allegedly engaged in sexual conduct with a person 

under the age of 13; however, only D.B. was charged with a violation of R.C. 

2907.02(A)(1)(b). This arbitrary enforcement of the statute violates D.B.’s right 

to equal protection. We accordingly hold that application of the statute in this 

case violated D.B.’s federal equal-protection rights. The statute is 

unconstitutional as applied to him. 

III. Conclusion 
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{¶ 32} R.C. 2907.02(A)(1)(b) prohibits one from engaging in sexual 

conduct with a person under the age of 13. As applied to offenders who are under 

the age of 13 themselves, the statute is unconstitutionally vague in violation of the 

Due Process Clause of the United States Constitution because arbitrary and 

discriminatory enforcement is encouraged. Application of the statute in this case 

also violates the Equal Protection Clause of the United States Constitution 

because only one child was charged with being delinquent, while others similarly 

situated were not. 

{¶ 33} We thus hold that R.C. 2907.02(A)(1)(b) is unconstitutional as 

applied to a child under the age of 13 who engages in sexual conduct with another 

child under 13. 

Judgment reversed 

and cause remanded. 

 O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, and 

MCGEE BROWN, JJ., concur. 

 CUPP, J., concurs in the judgment, syllabus, and opinion of the court on the 

basis of the due process analysis only. 

__________________ 

 Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant 

Public Defender, for appellant. 

 Kenneth Oswalt, Licking County Prosecuting Attorney, and Christopher 

A. Reamer, Assistant Prosecuting Attorney, for appellee. 

 Juvenile Law Center, Marsha L. Levick, Lourdes M. Rosado, Jessica R. 

Feierman, and Riya S. Shah; National Center for Lesbian Rights, Jody 

Marksamer, and Ilona Turner; and Nadia Natasha Seeratan, urging reversal for 

amici curiae Juvenile Law Center; National Juvenile Defender Center; National 

Center for Lesbian Rights; Barton Child Law and Policy Center, Emory School of 

Law; Children and Family Justice Center, Bluhm Legal Clinic; Juvenile Justice 
January Term, 2011 

11 

Initiative of Illinois; Midwest Juvenile Defender Center; Tamar Birkhead; Jeffrey 

Fagan; Therese Glennon; Martin Guggenheim; Barry Krisberg; Elizabeth 

Letourneau; and Gail Ryan. 

 Joseph T. Deters, Hamilton County Prosecuting Attorney, and Phillip R. 

Cummings, Assistant Prosecuting Attorney, urging affirmance for amicus curiae 

Ohio Prosecuting Attorneys Association. 

_____________________