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Thursday, February 19, 2015

Voluntary Sexual Contact Between Children: Do You Know the Law In Your State?

The Kentucky Supreme Court recently heard arguments about whether voluntary sexual conduct between children should be prosecuted as a crime.

"This case matters to any parent who has a teenage child, or will have a teenage child," assistant public advocate John Wampler, said in an interview. "The simple fact is that unfortunately, many young teens under 16 are having sex with each other and engaging in sexting."

The state's high court is expected to issue a ruling within a few months

(Andrew Wofson. "Teen sex a crime? Ky high court to hear case."
The Courier-Journal. Louisville. February 09, 2015)

The Case

An eighth-grade boy and his seventh-grade girlfriend had been dating about 1½ years when they decided to have sex. The boy, 15, also texted two nude pictures of himself to the girl, 13, who sent him one back.

The legal fallout was one-sided after the girl's mother spotted the nude pictures on her daughter's phone. She then allegedly ascertained that her daughter had sex with her eighth-grade boyfriend at her house.

When the girl's parents found the pictures on her phone, they took out a warrant in Woodford Circuit Court.

Although both teenagers could have been charged with the same offenses, Kentucky's law landed on the boy, who pleaded guilty to two misdemeanors for having sex and exchanging the photos. The boy was charged with sexual misconduct, a misdemeanor, and possessing matter portraying a sexual performance by a minor, a felony. Then, despite his plea, a judge designated him a sex offender, removed him from his home and sent him to a juvenile detention center.

Although the boy (now known as B.H.)  was too young to consent to sex -- the minimum age is 16 in Kentucky -- he was charged with a crime for engaging in it. And even though the his parents could have gone to the county attorney's office and taken out charges against the girl (now known as C.W.) only B.H. was charged.

"If the Commonwealth's position is held to be correct, then approximately one third of all teenagers, according to recent statistics, could be charged with a felony sex offense," Wampler said. "That should strike fear in the hearts of every parent who has bought their child a smartphone.

The Kentucky attorney general's office, which is defending the prosecution, says that punishing only the boy was justified because B.H. initiated the acts and because he had a prior offense. He was already on probation for indecent exposure. In that case, B.H. had knocked on a neighbor's door dressed only in a towel and removed it to expose himself to the neighbor.

State Assistant Attorney General Gregory Fuchs argued that the since B.H. initiated the acts, the prosecution "fit within the parameters of the crime," and that if the defense argument holds sway, sexual activity between a 15-year-old and a 5-year-old could not be criminally prosecuted.

Fuchs said that B.H. gave up the right to challenge the constitutionality of his conviction by pleading guilty. "There was only one victim in this case," Fuchs said in a brief, "and it is just as illegal for appellant as a 15-year-old to possess that child pornography as it would be if he was 51 years old."

    15.0% had had sex with four or more people during their life
      Ohio Close-In-Age Exemption

      In Ohio, sexual intercourse with someone under 13 years of age is illegal regardless of the age of the defendant. However, if the victim is above this minimum age requirement (13) and below the age of consent (16), it is only illegal to engage in sexual intercourse with that individual if the defendant is at least 18 years of age.

      Statutory rape is prosecuted under Ohio’s rape and sex crime laws. Penalties depend on the ages of the defendant and victim, and the conduct that occurred, as described below.
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