The Ohio Supreme Court in a unanimous decision on June 8, 2011 struck down the state's statutory rape law in a case involving two boys under the age of 13. The Ohio Supreme Court ruled that the statutory rape law that defines sexual activity with a child under the age of 13 as rape, is unconstitutional when applied to sexual conduct between two children under the age of 13 when neither child uses force, impairs the other person's judgment or control, or the other person's ability to resist or consent is substantially impaired because of a mental or physical condition. The Supreme Court held that R.C. 2907.02 (A)(1)(b) which states that "no person shall engage in sexual conduct with another…" when "the other person is less than 13 years of age" is unconstitutionally vague and violates the right to equal protection of the laws when applied to charge on child under the age of 13 but not the other who engage in sexual conduct with one another. Justice Judith Lanzinger authored the ruling which reversed the 5th District Court of Appeals decision. She stated "as applied to children under the age of 13 who engage in sexual conduct with other children under the age of 13, R.C. 2907.02(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 under the age of 13 engage in sexual conduct with each other, each child is both the offender and the victim, and the distinction between those two terms breaks down."
The facts in this case involved two friends that were boys ages 11 and 12 who engaged in sexual acts on several occasions. The 12 year old boy was heavier and taller and was the actual instigator of the sexual conduct. The 11 year old testified that the sexual conduct was consensual, as did a witness. The older boy was charged with multiple delinquency counts of rape, including but not limited to stator rape in violation of R.C. 2907(A)(1)(b). The 5th District Court of Appeals upheld the lower juvenile court's judgment and held that the lower court's application of R.C. 2907(A)(1)(b) to convict the 12 year old boy of delinquent statutory rape was not unconstitutional under the facts of this case. Thus, The Supreme Court granted review of the 5 th District's ruling. The Supreme Court overturned the rape conviction ruling that Ohio's statutory rape law is unconstitutionally vague and violates the right to equal protection of the law when one boy was charged but not the other despite both being underage and agreeable.