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."
But the nation's oldest public interest law firm for children, the Juvenile Law Center in Philadelphia, and the Children's Law Center of Covington say in a friend-of-the court brief that criminalizing "sexual explorations" among consenting teens is bad law and policy and stigmatizes youths.
Dealing with sexual feelings is an important part of adolescence," they say in their brief, which notes that most states impose no punishment, or reduce punishment, when teen partners are of similar ages.
Wampler says the boy's prior offense is irrelevant to the constitutional issues in the current case. "There is no dispute that B.H. and C.W. had sex, and it is clear that the sex was consensual," Wampler writes in his brief. "Yet B.H. is painted as villain, an C.W. as victim."
Wampler claims neither had any inkling they were engaging in illegal activities. Wampler also notes that while both texted nude pictures to each other, only B.H. was charged with a crime -- violating the constitutional right to equal protection under the law.
Recalling the infamous example of U.S. Rep. Anthony Weiner, Wampler argues that prosecuting B.H. for sexting -- while adults would go unpunished for the same conduct -- is also unfair. "While the former congressman's sexting did unquestionable damage to his political career (and presumably, to his marriage as well), he did not find himself in jail over his actions.
The Legislature did not intend to say that a 15-year-old lacks the maturity to consent to sex with an adult, but then hold him criminally liable for the same behavior with a fellow juvenile, Wampler argued.
Many states have "Romeo and Juliet" laws that protect some teens from prosecution when they engage in consensual sex. Let's consider the laws in Ohio.
34.0% had had sexual intercourse during the previous 3 months, and, of these 40.9% did not use a condom the last time they had sex
What is the 2015 Age of Consent in Ohio?
The Age of Consent is the age at which a person is deemed by Ohio law to be capable of consenting to, and engaging in, sexual acts. Anyone who engages in sexual activity of any type with a partner under the applicable Age of Consent is breaking the law and can be charged with crimes ranging from a misdemeanor to a felony (statutory rape) depending on the jurisdiction in which they are prosecuted.
The Ohio legal Age of Consent for sexual contact is 16 years old. There are a total of A total of thirty one states have set their age of consent at 16, the lowest age of consent in any state.
Ohio Close-In-Age Exemption
Ohio and Age of Consent
Children having intercourse? Children texting nude photos? I believe people of all ages -- including parents and their adolescent children -- should know the law. The reasons are obvious. STDs, severe emotional problems, teen pregnancy, and sex crimes cannot be dismissed as "fingers-crossed matters" of slighted education.
Fewer than 2% of adolescents have had sex by the time they reach their 12th birthday. But adolescence is a time of rapid change. In 2013, 5.6% of students had had sexual intercourse for the first time before age 13 yearsOnly 16% of teens have had sex by age 15, compared with one-third of those aged 16, nearly half (48%) of those aged 17, 61% of 18-year-olds and 71% of 19-year-olds. There is little difference by gender in the timing of first sex.
(L.B. Finer and J.M. Philbin. "Sexual initiation, contraceptive use, and pregnancy
among young adolescents." Pediatrics. 2013)
Among U.S. high school students surveyed in 2013 by the Centers for Disease Control, results yielded the following:
46.8% had ever had sexual intercourse
15.0% had had sex with four or more people during their life
(CDC. Youth risk behavior surveillance—United States, 2011. MMWR 2012)
Most females have sex for the first time with a partner who is between one and three years older. For the most part, the first sexual experience had by teen girls is with someone they are seeing regularly: boyfriend, fiancee, live-in partner or husband. It is worth noting that the younger a teen girl is when she has her first sexual experience, the more likely it is that it was involuntary.
("Pregnant Teen Help." http://www.pregnantteenhelp.org/statistics/teen-sex-statistics/)
What is the 2015 Age of Consent in Ohio?
The Age of Consent is the age at which a person is deemed by Ohio law to be capable of consenting to, and engaging in, sexual acts. Anyone who engages in sexual activity of any type with a partner under the applicable Age of Consent is breaking the law and can be charged with crimes ranging from a misdemeanor to a felony (statutory rape) depending on the jurisdiction in which they are prosecuted.
The Ohio legal Age of Consent for sexual contact is 16 years old. There are a total of A total of thirty one states have set their age of consent at 16, the lowest age of consent in any state.
A close-in-age exeption protects couples under 18 years of age from prosecution for sexual contact. Offenders are charged with "Unlawful sexual conduct with minor" for violations of the age of consent law.
Ohio has a close-in-age exemption, also known as a "Romeo and Juliet law," to the legal age of consent. This provision allows partners who are close in age, or both under the Ohio age of consent, to engage in consensual sex without fear of prosecution under Ohio age of consent regulations.
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.
Rape includes sexual conduct (genital or anal penetration, however slight) between a minor who is younger than 13 and a defendant of any age. Rape is a first degree felony, which incurs a fine of up to $20,000, at least three (and up to ten) years in prison, or both.
Unlawful sexual conduct with a minor includes sexual conduct between a minor who is 13, 14, or 15, and a defendant who is 18 or older. This offense is a misdemeanor if the defendant was fewer than four years older than the victim. Penalties include a fine of up to $1,000, several months in jail, or both.
It is a fourth degree felony if the defendant is four or more (but fewer than ten) years older than the victim. Penalties include a fine of up to $5,000, at least six months in jail (and up to 18 months in prison), or both.
And if the defendant is more than ten years older than the victim, this offense is a third degree felony, and penalties include a fine of up to $10,000, at least one (and up to five) years in prison, or both.
Gross sexual imposition includes sexual contact (sexual touching, without penetration, for the purpose of arousing or gratifying sexual desires) between a minor who is younger than 13 and a defendant of any age. This offense is a third degree felony, which incurs a fine of up to $10,000, at least one (and up to five) years in prison, or both.
(Oh. Rev. Code § 2907.02, 2907.04, & 2907.05.)
What happens if I travel to a state where the Age of Consent is lower?
In most states, the travel or transportation of a minor over state lines with the intention of engaging in sexual activity is in itself a severe misdemeanor or felony. As a result, it is generally not possible to evade a state's age of consent rules by travelling to a different state.
Bottom Line
As you can see, the statutes can be confusing. Yet, the old cliché still abides: "Ignorance is no excuse in the eyes of the law." Most of us have great compassion for young love, but that compassion is matched by our strong feelings about preserving innocence. The complications of sexting increase the likelihood of embarrassing public exposure at the least and sex predator criminal activities at the most.
Any decision to have intercourse must be taken seriously as couples weigh all the risks of sexual activity. Granted, a certain romance pervades young copulation, but almost all young people lack critical thinking skills and the necessary resources to deal with unexpected consequences. Young dreams and lives are often ruined or changed dramatically in exchange for pleasurable contact.
At what age is a sexual relationship considered necessary, caring, and LEGAL lovemaking? Close-in-age exemptions? Perhaps each case depends upon quite a few particular details. Young lovers, it's best to wait. With mutual consent, you can explore many satisfying benefits of sexual experimentation without penetration and intercourse.
I've always considered boys pretty much selfish, uneducated testosterone hosers when it comes to understanding the needs of a girl anyway. I know I was a dumb young man about sexual matters with no knowledge of what to do and how to do it. Fumbling experience can be a cruel teacher.
Sex instruction for adolescents? Why do we adults want to deny the obvious and cling to hope instead of giving youngsters pertinent information?
Perhaps it's time to acknowledge what we all know we should do by granting our adolescents simple, straightforward, evidence-based information about everything sexual ... including pleasure techniques that do not involve the highest risks.
Yes, I understand all the benefits of abstinence, but I am a realist with considerable research to back up my opinion: "Many young folks will continue to have affairs and have sexual liaisons during their peak years of raging hormones and risk-taking."
In most states, the travel or transportation of a minor over state lines with the intention of engaging in sexual activity is in itself a severe misdemeanor or felony. As a result, it is generally not possible to evade a state's age of consent rules by travelling to a different state.
Bottom Line
As you can see, the statutes can be confusing. Yet, the old cliché still abides: "Ignorance is no excuse in the eyes of the law." Most of us have great compassion for young love, but that compassion is matched by our strong feelings about preserving innocence. The complications of sexting increase the likelihood of embarrassing public exposure at the least and sex predator criminal activities at the most.
Any decision to have intercourse must be taken seriously as couples weigh all the risks of sexual activity. Granted, a certain romance pervades young copulation, but almost all young people lack critical thinking skills and the necessary resources to deal with unexpected consequences. Young dreams and lives are often ruined or changed dramatically in exchange for pleasurable contact.
At what age is a sexual relationship considered necessary, caring, and LEGAL lovemaking? Close-in-age exemptions? Perhaps each case depends upon quite a few particular details. Young lovers, it's best to wait. With mutual consent, you can explore many satisfying benefits of sexual experimentation without penetration and intercourse.
I've always considered boys pretty much selfish, uneducated testosterone hosers when it comes to understanding the needs of a girl anyway. I know I was a dumb young man about sexual matters with no knowledge of what to do and how to do it. Fumbling experience can be a cruel teacher.
Sex instruction for adolescents? Why do we adults want to deny the obvious and cling to hope instead of giving youngsters pertinent information?
Perhaps it's time to acknowledge what we all know we should do by granting our adolescents simple, straightforward, evidence-based information about everything sexual ... including pleasure techniques that do not involve the highest risks.
Yes, I understand all the benefits of abstinence, but I am a realist with considerable research to back up my opinion: "Many young folks will continue to have affairs and have sexual liaisons during their peak years of raging hormones and risk-taking."
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