COUNSEL FOR THE STATE OF OHIO. COU'tiISEL FOR K.A. IN THE SUPREME COURT OF OHIO IN RE: K.A., A MINOR CHILD

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1 z; r IN THE SUPREME COURT OF OHIO IN RE: K.A., A MINOR CHILD x.. ^..,.q, Case No. 4^ On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District, Case Nos & MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT K.A. The Office of the Ohio Public Defender TIMOTHY 1VICGINTY # Cuyahoga County Prosecutor (Counsel of Record) The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio (216) COUNSEL FOR THE STATE OF OHIO CHARLYN I3OHLAND # Assistant State Public Defender (Counsel of Record) 250 East Broad Street, Suite 1400 Columbus, Ohio (614) (614) Fax charlyn.bohland@opd.ohio.gov COU'tiISEL FOR K.A....,.<3 s'.^.^:;'2 ts;' s'.3 Ui'T (,E^`^^^.^^#M s^t ^ icr.:' f ^^''^.i^^i s?s T OF ^#d3^i

2 TABLE OF CONTENTS Page No. EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBS7'ANTIAL CONSTITUTIONAL QUESTION...1 STATEMENT OF TI-IE CASE AND T'HE I'ACTS...2 ARGUMENT ,......,...,......,...6 PROPOSITION OF LAW I: Gross sexual imposition of a child under the age of 13 is a strict liability offense. R.C (A.)(4) PROPOSITION OFLA'W II: The application of R.C (A)(4) to a child under the age of 13, who engages in non-forcible sexual contact with another child under the age of 13, violates the Equal Protection and Due Process Clauses of the United States and Ohio ConstYtutions CONCLUSION CERTIFICATE OF SERVICF, APPENDIX: Journal Entry and Opinion, Cuyahoga County Court of Appeals Case Nos z (July 11, 2013) A-1 I

3 EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT UENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION In 2011, this Court unanimously held that the statutory rape provision under R.C (A)(I)(b) was intended to protect all children under the age of 13 who engage in nonforcible, inappropriate sexual conduct. See In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 TNT.E.2d 528, T 32. At the heart of D.B. was the General Assembly's stated intent in creating the statute-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. "' Icl at ^ 18. Shortly after D.B. was decided, this Court Iaeld that R.C (A)(4) contains a strict liability provision regarding the age of the child; and, contains a "purposeful" mens rea regarding the sexual activity involved. State v. Dunlap, 129 Ohio St.3d 461, hio-4111, 953 N.E.2d 816, 1. However, a review of the legislative history reveals that the General Assembly intended for GSI to mirror rape with identical elements, but for a less serious felony-level offense. Former R.C , Am. Sub. H.B. 511, Committee Comment (1974). And, the General Assembly carefully crafted the statute's definitional section to specifically explain the type of touching that was prohibited under the statute: a touching of a sexual nature. In Dunlap, this Court considered how R.C (A)(4) applied to an adult offender and child victim, not two children, both within the class protected by the statute; and, this Court was not given the opportunity to review the General Assenibly's intent in enacting R.C See Dunlap at The General Assembly provided the State with the opportunity to protect underage children from forcible sexual contact of other underage children, through R.C (A)(1). But, the question to be answered here, is whether the enforcement of R.C (A)(4) against 1

4 children under 13, who engage in non-forcible sexual contact, is rationally related to the General Assembly's objective in enacting the statute. It is nonsensical that a child under 13 who commits non-forcible rape, could not be charged; but, a child under 13 who commits non-forcible GSI, a less-serious offense than rape, would be charged with a felony-level sex offense. This was not the General Assembly's intent. Th.is case provides this Court with the opportunity to reconsider the mens rea in R.C (A)(4), to consider evidence that was not provided to this Court at the time that Dunlap was decided, and to use the reasoning in D.B. to protect children under the age of 13 who engage in non-forcible, inappropriate sexual contact, under R.C (A)(4). STATEMENT OF THE CASE AND FACTS A complaint filed in the Cuyahoga County Juvenile Court alleged that then 12-year-old K.A. was a delinquent child for engaging in sexual contact with a child under the age of 13, a violation of R.C (A)(4), a third-degree felony if committed by an adult. 'The other child was 5 years old at the time of the offense. After K.A. admitted to the offense, the juvenile court adjudicated him delinquent, ordered him to complete a residential treatment program, and ordered him to follow the rules of probation. Four months later, K.A.'s probation officer filed a violation motion alleging that K.A. failed to fully participate in the treatment program. The juvenile court revoked K.A.'s probation and committed him to the Ohio Department of Youth Services for a minimum period of 6 months, maximum to his 21 st birthday. On appeal, K.A. alleged that he should not have been adjudicated delinquent of R.C, (A)(4), when he was within the class protected by the statute. The Eighth District affirzned the juvenile court's adjudica.tion. Opinion at T 2. In its decision, the court determ:ined. [A]lthough both the statutory rape statute and gross sexual imposition statute involve children under the age of 13, they require a different mens rea. Statutory 2

5 rape is a strict-liability offense because it does not require a mens rea. Statutory rape only requires engaging in a proscribed act. Gross sexual imposition pursuant to R.C (A)(4), however, requires the offender to engage in certain contact with the `purpose' to cause sexual arousal or gratification. The mens rea of `purpose' to cause sexual arousal or gratification provides a«ray to differentiate the victim from the offender. Opinion at T 11. PROPOSITION OF LAW I Gross sexual imposition of a child under the age of 13 is a strict liability offense. R.C (,A)(4). In 1974, the General Assembly eiiacted R.C (rape) and R.C (GSI). The Committee Comment to I of the GSI statute provides: "This section defines an offense analogous to rape, though less serious[; and i]ts elements are identical to those of rape, except that the type of sexual activity involved is sexual contact, rather than sexual conduct." 'Therefore, the General Assembly created the statutes to mirror one another's elements: Rape GSI (A) No person shall engage in sexual conduct (A) No person shall have sexual contact with with another, not the spouse of the offender, another, not the spouse of the offender when when aily of the following apply; any of the following apply: (1) The offender purposely compels the other (1) The offender purposely compels the other person to submit by force or threat or force. person to submit by force or threat of force. (2) For the purpose of preventing resistance, (2) For the purpose of preventing resistance, the offender substantially impairs the other the offender substantially impairs the other person's judgment or control by administering person's judgment or control by administering any drr.ig or intoxicant to the other person, any drug or intoxicant to the other person, surreptitiously or by force, threat of force, or surreptitiously or by force, threat of force, or deception. deception. (3) The other person is less than thirteen years 1 (3) The other person is less than thirieen years of age, whether or not the offender knows the of age, whether or not the offender knows the age of such person. age of such person. 3

6 Former R.C. 2907:02, Am. Sub. H.B. 511 (1974); Former R.C ; Am. Sub. H.B. 511 (1974). "Sexual conduct" was defined as "vaginal intercourse between a male and female, and anal intercourse, fellatio, and cuau-iilingus between persons regardless of sex[;and p]enetration, however slight, is sufficient to complete vaginal or anal intercourse." Former R.C (A), Am. Sub. I-I.B. 511 (1974). "Sexual contact" was defined as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if such person is a female, a breast, for the purpose of sexually arousing or gratifying either person." F'onner R.C (B). Am. Sub. H.B. 511 (1974). Former R.C (A)(3) was a strict liability offense. State v. Astley, 36 Ohio App.3d 247, 249, 523 N.E.2d 322 (1987) ("Only subsections (A)(1) and (2) of R.C provide for specific culpable mental states[; and t]herefore, under R.C (A)(3), the act itself is the conduct prohibited, whatever the specific intent or purpose of the o#fender."). Just like R.C , the General Assembly assigned a specific mens rea to subsections (A)(1) and (A)(2) of GSI. Former R.C , Am. Sub. H.B. 511 (1974). 'I'he only subsection that did not contain an assigned mens rea was R.C (A)(3). The two statutes were created and intended to be identical; therefore, because rape is a strict liability offense in subsection three and GSI mirrors rape, GSI is a strict liability offense in its subsection three. Since 1974, both statutes have been renumbered and expanded. The current rape statute's provisions have remained the same, except that the strict liability provision is now R.C (A)(l)(b). Like its former version, R.C (A)(1)(b) has been interpreted to be a strict liability offense. In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, at Tj 13. The current GSI statute, R.C , provides: (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact 4

7 with the offender; or cause two or more other persons to have sexual contact when any of the following applies: (1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force. (2) For the purpose of preventing resistanee, the offender substantially impairs the judgment or control of the other person or of one of the other persons by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception. (3) The offender knows that the judgment or control of the other person or of one of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person's consent for the purpose of any kind of medical or dental examination, treatment, or surgery. (4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person. (5) The ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age. The General Assembly expressly set forth the applicable mens rea for each type of GSI in the subsections; and, just as the General Assembly crafted R.C (A)(l)(b) with no mens rea, R.C (A)(4) also contains no mens rea. The sexual contact defined in R.C (B) merely defines the activity-a sexual touching, as distinguished from another type of touching, i.e., a harmless touching, a touching to harm, assault, sexual battery, etc. Based on the General Assembly's original intent, R.C (A)(4) must also be interpreted as a strict liability offense. :Elowever, in 2011, this Court held that R.C (A)(4) contained a strict liability portion as to the age element and a purpose mens rea element as to the sexual contact involved. State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-41.11, 953 N.E.2d 816, at ^,,, 1. This Court 5

8 reasoned that the definitional section of R.C (B) defines the mens rea element when it provides "for the purpose of sexually arousing or gratifying either person." Icl. at ^j IIowever, in Dunlap, this Court was faced with an adult defendant who violated the terms of the statute, not a child who is a.member of the protected class. Id, at T 2. Further, it is not apparent from the analysis or the submitted briefs that this Court considered the legislative history or the General Assembly's intent in enacting GSI to mirror rape. Further evidence that the General Assembly intended for R.C (}5(A)(4) to be a strict iiabilityoffense can be found in R.C (B). In 2007, as part of S.B. 10, the General Assembly added R.C (B), which provides: No person shall knowinoly touch the genitalia of another, when the touching is not through clothing, the other person is less than twelve years of age, whether or not the offender knows the age of that person, and the touching is done with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. (Emphasis added.) Unlike R.C (A)(4), subsection (B) contains a specific mens rea in addition to charging a person with the offense based solely on the victim's age. The General Assembly added R.C (B) to include a tier III sex offender registration offense within the GSI statute. See R.C (G)(1)(b). The General Assembly did not rely on the sexual contact definitional section for the mens rea eleinent; rather, it was added directly to the statute. 6

9 PROPOSITION OF LAW II The application of R.C (A)(4) to a child under the age of 13, who engages in non-forcible sexual contact with another child under the age of 13, violates the Equal Protection and Due Process Clauses of the United States and Ohio Constitutions. In 1967, the United States Supreme Court held that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Children are entitled to equal protection of the laws and due process. A. Equal Protection Violation The guarantee of equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or classes in the sam:e place and under like circumstances. Fourteenth Amendment to the U.S. Constitution; Ohio Constitution, Article 1, Section 2. The Equal Protection Clause of the Ohio Constitution has been interpreted. to be essentially identical in scope to the analogous provision of the United States Constitution. Sorrell v. Thevenir, 69 Ohio St.3d 415, 424, 633 N.E.2d 504 (1994). In order to be constitutional, a law must be applicable to all persons -under like circumstances and not subject individuals to an arbitrary exercise of power. Conley v. Shearer, 64 Ohio St.3d 284, , 595 N.E.2d 862 (1992). In other words, the Equal Protection Clause prevents the state from treating persons, who are in all relevant respects alike, differently or arbitrarily. See Park Corp. v. City of Brook Park, 102 Ohio St.3d 166, 2004-Ohio-2237, 800 N.E.2d 913, ^ 18. The legislature may only impose special burdens on defined classes in order to achieve permissible ends. Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966) (stating that there must be some rationality in the nature of the classes singled out). "The proper standard of review is the rational basis test. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 315, 96 S.Ct. 2562, 49 L.Ed.2d 250 (1976). "1'his Court has reasoned: 7

10 "Under a traditional equal protection analysis, class distinctions in legislation are permissible if they bear some rational relationship to a legitimate govexnrnental objective." State v. Thompkins, 75 Ohio St.3d 558, 561, 664 N.E,2d 926 (1996), quoting State ex rel. Vana v. Maple Heights City Council, 54 Ohio St.3d 91, 92, 561 N.E. 2d 909 (1990). In this case, the question to be answered is whether the enforcement of R.C (A)(4) against children under 13 is rationally related to the General Assembly's objective in enacting the statute. In statutory construction, "when the language of a statute is plan and unambiguous and conveys a clear and definite meaning, there is no need to apply the rules of statutory interpretation." State ex rel. Jones v. Conrad, 92 Ohio St.3d 389, 392, 750 N.E.2d 583 (2001). But, "[w]here the literal reading of a statutory term would `compel an odd result,' we must search for other evidence of congressional intent to lend the term its proper scope." Public Citizen v. U.S.L?ep't,fJiistice, 491 U.S. 440, 454, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). Looking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention, since the plain-meaning rule is `rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.' Id. "` [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Id. at 466; see also Statc v. S.R., 63 Qhio St.3d 590, 594, 589 N.E.2d 1319 (1992) ("In construing a statute, a court's paramotint concern is the legislative intent in enacting the statute."). In this case, persuasive evidence exists in the legislative history to shed light on the General Assembly's intent to protect all children under 13. Because the General Assembly intended for GSI to mirror rape, though a less serious offense, it is appropriate to look at the General Assembly's intent in enacting the rape statute. 8

11 The 1974 Committee Comment to Am. Sub. H.B. 511 for rape provides: [T]he section designates as rape sexual conduct with a pre-puberty victim, regardless of whether force or drugs are used and regardless of whether the offender has actual knowledge of the victim's age. The rationale for this is that physical immaturity of a pre-puberty victim is not easily mistaken, and engaging in sexual conduct with such a person indicates vicious behavior on the part of the offender. The General Assembly carved out a special protection for children under 13. And, in 2011, this Court held that children under 13 could not be charged with a violation of R.C (A)(1)(b) as follows: 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 (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 [the children] 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. In re D.R, 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N;E.2d 528, at 30. The arguments made in support of the protections provided to children under 13 in the rape statute apply equally to children under 13 in the GSI statute, because the General Assembly intended for GSI to be analogous, with identical elements to rape, but for a less serious offense. Former R.C , Am. Sub. H.B. 511., Committee Comment (1974). Under R,C. 29()7.05(.A)(4), the determination of "offender" and "victim" is determined by age. But, that delineation cannot be easily made when both parties are children under 13, as both are in the class R.C (A)(4) was crafted to protect. It is nonsensical that a. child under 13 who commits non-forcible rape, would not be charged; but, a child under 13 who commits non- 9

12 forcible GSI, a less-serious offense than rape, would be charged with a. felony-level sex offense. This was not the General Assembly's intent. It is clear that when there are no allegations of force, R.C (A)(4) was intended to protect all children under 13, because they are immature and not emotionally prepared to engage in sexual activity. Based on the plain langtzage of R.C (A)(4), there is an equal protection violation every time someone under 13 is charged, whether there is an age differential or not between the children. The General Assembly intended for GSI to be a less serious offense than rape, but with identical elements. The General Assembly also intended to protect against teens and adults from engaging in non-forcible sexual activities with children under 13. There is no legitimate gqverrlnaental interest served by finding a child under 13 delinquent when the elements of force or threat of force are not present, B. Due Process Violation The Supreme Court held that juvenile delinquency proceedings must "measure up to the essentials of due process and fair treatment." Gault, 387 U.S. at 13, 87 S.Ct. 1428, 18 L.Ed.2d 527. Due process is not satisfied if a statute is unconstitutionally vague because it fails to provide people with the opportunity to know what conduct is prohibited and results in "arbitrary and discriminatory enforcement." Skilling v. United States, 130 S.Ct. 2896, 2928, 177 L.Ed.2d 619 (2010). The Supreme Court has recognized that children are different from adults. See Graham v. Floridcx, U.S. _, 130 S.Ct. 2011, 2026, 176 L.Ed.2d 825 (2010) (noting that children have a "lack of maturity and underdeveloped sense of responsibilitv" and "developments in psychology and braiii science continue to show fundamental differences between juvenile and adult minds"). Juvenile sex offender researchers have found that children and adults are 10

13 different in terms of their offending. Justice Policy Institute, Youth Who Commit &x Offenses: Fact and Fiction, available at JJ.pdf (noting that it is an incorrect belief that "[s]ex offenses committed by youth are deviant and violent" and "many youth are charged with sex offenses for normative, if inappropriate behavior"). Equating 12-year-old K.A.'s acts with a 20-, 30-, or 40- year-old adult's acts defies logic. The General Assembly intended to protect all children under 13 from being victimized by teens and adults. Forner R.C , Am. Sub. H.B. 511, Committee Comment (1974). In this case, K.A., the 12-year-old child, was charged with the offense, even though he was within the protected class. This Court has held that consent does not play into the analysis with strict liability offenses, because all children under 13 are legally incapable of consenting to sexual activity. D.B. a.tt 13; see also In re B.A..t1^L, 2002 PA Super. 284, 806 A.2d 893, T 15 (finding that the "Legislature enacted into law the principle that any child under 13 is incapable of consent, i.e., incapable of understanding the implications and consequences of the act"). The Revised Code provides the State with the opportunity to protect underage children from forcible sexual contact from other underage children, through R.C (A)(1). And, the juvenile rules provide for children in need of supervision and counseling services, to be dealt with informally. Juv.R. 9(A) ("In all appropriate cases forrnal court action should be avoided and other community resources utilized to az-neliorate situations brought to the attention of the court."); Juv.R. 9(B). K.A. was prosecuted under the statute that was intended to protect him. 11

14 CONCLUSION This Court should accept K.A.'s appeal because it involves a felony-level offense, is of public or great general interest, and involves a substantial constitutional question. For the reasons set forth above, K.A. respectfully requests that this Court accept jurisdiction of this appeal. Respectfully submitted, The Oflice of the Ohio Public Defender CHARL.Y( oi Il,aND #008`8080 A.ssistantSta e Public Defender (Counsel of Record) 250 East Broad Street, Suite 1400 Columbus, Ohio (614) (614) (Fax) charlvn.hohland@opd.ohio.gov COUNSEL FOR K.A. CERTIFICATE OF SERVICE The undersigned counsel certifies that a copy of the foregoing Memorandum in Support of Jurisdiction of Appellant K.A., was served by ordinary U.S. Mail, postage-prepaid, this 26th day of August, 2013 to Timothy McGinty, Cuyahoga County Prosecutor, 8th Floor, Justice Center, 1200 Ontario Street, Cleveland, Ohio Fl) 6. CHARLYN OIlT;^ND # Assistant St e Public Defender # CUNSEL FOR K.A. 12

15 IN THE SIJPR.E]VIE COURT OF OHIO IN R.E: K.A., A MINOR CHILD : Case No. On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District, Case Nos & APPENDIX TO MEMORANDUM IN SUPPORT OF JURIS1DICTION OF APPELLANT K.A.

16 ^vurt of pptatg of 0Tji0 EIGHTH APPELLATE DISTRICT COUNTYOFCUYAHOGA. JOURNAL ENTRY AND OPINION Nos and IN RE: K.A. A Minor Child JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-1 l BEFORE: Elackmon, J., Rocco, P.J., and E.T. Gallagher, J. RELEASED AND JOURNALIZED: July 11, 2013 A - 1

17 -T.- AT'.PORNEYS FG:P, APPELLANT Timothy Young Ohio Public Defender By: Charlyn Bohland Assistant State Public Defender 250 East Broad Street Suite 1400 Columbus, Ohio ATTORNEYS FOR APPELLEE Timothy McGinty Cuyahoga County Prosecutor By: Lillie Burkons Kristen L. Sobieski Assistant County Prosecutors The Justice Center, 8`h Floor 1200 Ontario Street Cleveland, C)hi:o FILED AND JOURNALIZED PER APP,R, 22(C) JUL ^ ^ 2013 ^ C r^ A 4TY CLERK OF. '4U 7 0 APPEALS By Deputy A - 2

18 PATRICIA ANN BLACKMON, J.: { 11 Appellant K.A. appeals the judgment of the juvenile court adjudicating him delinquent after having committed the offense of gross sexual imposition. He assigns the following three errors for our review: 1. [K.A.] was denied his right to equal protection of the laws when he was adjudicated delinquent of R.C (A)(4), for an offense committed when he was under the age of thirteen and a member of the class protected by the statute. II. [K.A.] was denied his right to due process of law when he was adjudicated delinquent of R.C (A)(4), for an offense commytted when he was under the age of thirteen and a member of the class protected by the statute. III. [K.A.] was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 1:0 of the Ohio Constitution. { 21 Having reviewed the record and pertinent law, we affirm the trial court's decision. The apposite facts follow. Facts { 3} On July 28, 2011, a complaint was filed in the juvenile court allegi.ng that then 12 year-old K.A. committed one count of gross sexual imposition against his five-year old cousin. K.A. entered an admission to the charge.l 'K.A. also entered an admission to two counts of disorderly conduct in two unrelated cases. A - 3

19 { 4} At the admission hearing, it was revealed that K.A. was discovered with his pants down on top of his cousin, "humping" her. The cousin told the police that K.A. had said to her, "let's do it like they do in the movies." No bodily fluids were found on the victim, but she did suffer some bruising. M) The court found that returning K.A. to his home "would be contrary to his best interests and welfare." He was therefore placed at a residential treatxnent facility to receive therapy. The court ordered that upon successful completion of treatment, K.A. was to be released and to participate in aftercare supervision. { 6} While at the treatment center, K.A. physically assaulted three staff members. Therefore, his placement at the residential facility was deemed inappropriate, and he was sent to the Cuyahoga County Juvenile Detention Center for a minimum of six months; the court also ordered that K.A. complete a sex offender treatment program before he was released. Violation of Equal Protection and Due Process { 71 In his first and second assigned errors, K.A. argues that his conviction for gross sexual imposition violated his rights to equal protection and due process. He specifically argues that R.C (A)(4) under which he was found to be delinquent protected victims under the age of 13, and because he was under 13 when he committed the offense, the application of the statute violates the Equal Protection Clause's mandate that persons similarly situated be A - 4

20 treated alike. He also argues his right to due process was violated because the statute was unconstitutionally vague because it fails to provide notice of what conduct is prohibited resulting in arbitrary and discriminatory enforcement. J 8} In support of his arguments, K.A. relies on the Ohio Supreme Court case -In re D.B., 1.29 Ohio St.3d 104, 2011-C?hio-2671, 950 N.E.2d 528. In D.B., a 12 year old child was found to be delinquent by reason of committing the offense of statutory rape against a child under the age of 13, in violation of R.C (A)(1)(b). That statute provides that "anyone who engages in sexual conduct with a minor under the age of 13 commits statutory rape regardless of whether force was used."2 The Supreme Court held: Id. As applied to children under the age of 13 who engage in consensual sexual conduct with other children under the age of 13, R.C (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 n.nder 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. (Emphasi_s added.) 'R. C (A) defines "sexual conduct" as "vaginal intercourse between a male and female, anal intercourse, fellatio, and cunnilingus between two persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another." A - 5

21 { 9{ K.A. argues the same analysis set forth in. D.B. should apply to R.C (A)(4) because both he and the victim were under the age of 13. We disagree. R.C (A)(4) provides: No person shall have sexual contact with another, not the spouse of the offender, cause another, not the spouse of the offender, to have sexual contact with the offender, or cause two or more other persons to have sexual contact when * * * the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person. ( Id{ R.C (B) defines "sexual contact" as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." (Emphasis added.) In State v. Dunlap, 129 Ohio St.3d 461, 2011_-Ohio-4111, 953 N.E.2d 816, the Supreme Court addressed the mens rea element of gross sexual imposition involving victims under 13 years of age. The court held that "the applicable mens rea of sexual contact, as defined in R.C (B), is purpose." Id., at 26. { I1} Thus, although both the statutorv rape statute and gross sexual imposition statute involve children under the age of 13, they require a different mens rea. Statutory rape is a strict-liability offense because it does not require a mens rea. Statutory rape only requires engaging in a proscribed act. Gross sexual imposition pursuant to R.C (A)(4), however, requires the offender to engage in certain contact with the "purpose" to cause sexual arousal or, A - 6

22 gratification. The mens rea of "purpose" to cause sexual arousal or gratification provides a way to differentiate the victim from the offender. { 121 There is also no arbitrary and discriminatory enforcement because only K.A. had the purpose of sexually arousing or gratifying either person. Therefore, R.C (A)(4) is not impermissibly vague nor a violation of equal protection. See In the Matter of: 7'.A., 2d Dist. Nos CA-28 and 2011-CA-35, 2012-Ohio Accordingly, K.A.'s first and second assigned errors are overruled. Ineffective Assistance of Counsel {TI 13} In his third assigned error, K.A. argues his counsel was ineffective for failing to allege that the court's finding K.A. delinquent pursuant to R.C (A)(4) violated his rights to equal protection and due process. { 14{ To establish a claim for ineffective assistance of counsel, K.A. must show that his counsel's performance was deficient and that deficiency prejudiced his defense. Strickland v. Washin.gton, 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990). Under Strickland,, our scrutinn,y of an attorney's work must be highly deferential, and we must indulge "a strong presumption that counsel's conduct falls within the range of reasonable profession;al. assistance." Id. at 688. A - 7

23 I 15} We have already determined that there is no merit to K.A.'s contention that R.C (A)(4) violates his rights to equal protection and due process. Therefore, his attorney's failure to object on these grounds was not prejudicial. Accordingly, K.A.'s third assigned error is overruled. { 16) Judgment affirmed. It is ordered that appellee recover from. appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to the Juvenile Court Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKIVION, JLTDOE KENNETH A. ROCCO, P.J., and EILEEN T. GALLAGHER, J., CONCUR A-- 8