In 2007, two Ohio boys engaged in sexual acts with each other. One was 12-years-old and the other 11-years-old. Both boys admitted to consenting to the sex. The 12-year-old was accused of statutory and forcible rape. Ohio's statutory rape law provides that anyone who has sex with someone under the age of 13 is guilty of statutory rape.

Although the forcible rape charges were dropped, the 12-year-old was found to have committed five counts of statutory rape. As punishment for his juvenile crime, he was sentenced to at least five years in juvenile prison or until his 21st birthday.

However, on appeal the Ohio Supreme Court recently ruled that sexual activity between two consenting children younger than 13 is not considered statutory rape under Ohio law.

In the unanimous decision, the court found that Ohio's statutory rape law as applied to children younger than 13 was unconstitutionally vague. The court explained that the law in effect made both children offenders and victims at the same time. Because both of the boys engaged in sexual activity with a person younger than 13, they both could be charged with statutory rape under Ohio law. As a result, the Ohio Supreme Court found that the 12-year-old was discriminated against because the 11-year-old was not charged as well.

However, the court clarified that if the 12-year-old used force, or if the other child was physically or mentally impaired, then the outcome would be different. In addition, if the older child had been 13-years-old when the sexual activity occurred, he could have been found guilty of statutory rape.

As a result of the decision, the 12-year-old boy's record will be cleared, as will any other statutory rape charges against children in similar situations throughout Ohio.

Source: NewarkAdvocate.com, "Ken Oswalt: Ruling on statutory rape may be hurdle," Jessie Balmert, 9 June 2011