The decision also said that the law in this case violated the Equal Protection Clause of the U.S. Constitution because only one child was charged with being delinquent, while others in similar situations were not.
The decision reversed a ruling by the 5th District Court of Appeals.
The ruling stems from a Licking County case involving a 12-year-old boy identified as D.B. and his 11-year-old friend identified as M.G., also a boy. D.B. was physically taller and heavier than M.G. and instigated sexual conduct, a Supreme Court review said.
Both boys and a mutual friend who witnessed some of the acts testified that M.G. consented.
The law holds offenders liable for engaging in sex with children younger than 13. Force is not an element of the crime because children younger than 13 are presumed to be incapable of consenting to sexual conduct, the decision said.
The law is unconstitutional as applied to D.B., who was found to be delinquent, because “it fails to provide guidelines that designate which actor is the victim and which is the offender, resulting in arbitrary and discriminatory enforcement,” the decision said.
When adults engage in sex with children younger than 13, it is clear who is the offender and who is the victim, the decision said. “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 the two terms breaks down.”
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