This document provides background on the void-for-vagueness doctrine, prosecutorial discretion, and equal protection as they relate to a recent Ohio Supreme Court case, In re D.B. It discusses that laws can be unconstitutionally vague if they fail to provide clear guidelines to allow ordinary people to understand what conduct is prohibited or if they authorize arbitrary enforcement. Prosecutors have broad discretion in charging decisions as long as they are not based on impermissible classifications like race or religion. The document then analyzes In re D.B., finding that while the court correctly overturned the conviction on substantive due process grounds, it erred in also finding an equal protection violation, as prosecutors have discretion to charge similarly situated individuals differently.

1. Jarrett Rinehart
2011-2012
Too Young to Consent, Old Enough to Commit.
A Comment on In re D.B.
I. Introduction
Discretion is a powerful political tool. Left unfettered, it is prone to abuse. Fortunately,
our Constitution does not leave discretion completely unfettered. When one abuses their
discretionary power, they are reprimanded by those who granted them that power. However,
even though one party abused its power, the courts do not impose a blanket restriction on
discretion in that substantive area to all parties who could potentially exercise that discretion.
What if the party exercised their discretion poorly? Should the courts limit the discretion
of all parties who could exercise that discretion? The Ohio Supreme Court recently held that
discretion should be limited to all Ohio prosecutors when one prosecutor made a poor decision.
Its holding jeopardizes the entire principle of prosecutorial discretion under Ohio law.
In re D.B.1, a recently decided Ohio Supreme Court case, held that it was a violation of
both Due Process and Equal Protection of the Fourteenth Amendment of the U.S. Constitution
(as-applied to the facts of this case) to charge one boy with statutory rape, a strict liability
offense, but not the other boy despite the fact that the sexual conduct was consensual. Where the
court was correct in determining that ORC § 2907.02(A)(1)(b) was unconstitutionally vague as
applied to the facts of this case, they erred in their Equal Protection analysis. Charging one
person with a crime and not the other is not a violation of Equal Protection as the prosecutors,
Page 1 of 35
1 129 Ohio St.3d 104 (2011).

2. through their constitutionally permissible discretion, determined that these two juveniles were
not similarly situated. Prosecutorial discretion is only an Equal Protection violation when the
discretion is exercised based on an impermissible classification such as the defendant’s race,
religion, or political affiliation. Thus, the Ohio Supreme Court erred in its finding an Equal
Protection analysis in this case.
Part II of this Note discusses the background of the void-for-vagueness doctrine and
prosecutorial discretion under the Fourteenth Amendment as decided by the Supreme Court.2
Part III focuses on In re D.B. in detail, including the underlying facts, competing arguments,
procedural history, as well as the Ohio Supreme Court’s rationale for its decision.3 Part IV
analyzes why this case was incorrectly decided on Equal Protection grounds because it is
inconsistent with precedent.4 Further, it analyzes the court’s substantive due process analysis,
which was alone sufficient for overturning D.B.’s conviction.5 Part V concludes that this
decision is unnecessarily broad and should have been settled on substantive due process grounds
alone.
II. Background
Individual statutes can be unconstitutionally vague for either of two independent
reasons6: (1) “if it fails to provide people of ordinary intelligence a reasonable opportunity to
Page 2 of 35
2 See infra notes 6-88.
3 See infra notes 89-122.
4 See infra notes 123-151.
5 See infra notes 152-176.
6 Hill v. Colorado, 530 U.S. 703, 732 (2000).

3. understand what conduct it prohibits”7 or (2) “if it authorizes or even encourages arbitrary and
discriminatory enforcement.”8 Laws must provide explicit standards for those who apply them
to prevent arbitrary and discriminatory enforcement.9 Otherwise, a vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and
subjective basis, with the inherent danger of arbitrary and discriminatory application.10 A statute
that fails either of these two tests violates the requirements of due process under the Fourteenth
Amendment if it is state law11 and the Fifth Amendment if it is federal law.12
In the context of equal protection, courts have recognized broad discretion to initiate and
conduct criminal prosecutions, in part out of regard for the separation of powers doctrine, and in
part because prosecutorial decisions are “particularly ill-suited to judicial review.”13 “[S]o long
as the prosecutor has probable cause14 to believe that the accused committed an offense defined
by statute, the decision whether or not to prosecute, and what charge to file or bring before a
Page 3 of 35
7 Id.
8 Id.
9 Grayned v. City of Rockford, 408 U.S. 104, 108-9 (1972).
10 Id.
11 See Kolender v. Lawson, 461 U.S. 352, 353-54 (1983).
12 See United States v. Powell, 423 U.S. 87, 89-90 (1975).
13 U.S. v. Armstrong, 517 U.S. 456, 464 (discussing that the separation of powers doctrine requires broad
prosecutorial discretion because federal prosecutors “are designated by statute as the President’s delegates to help
him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.”); Wayte v. U.S.,
470 U.S. 598, 607 (1985) (stating that the court ill-equipped to evaluate the strength of the case, the prosecution’s
general deterrence value, the government’s enforcement priorities, and the case’s relationship to government’s
overall enforcement plan.); U.S. v. Snyder, 136 F.3d 65, 70 (1st Cir. 1998); U.S. v. Smith, 55 F.3d 157, 159 (4th Cir.
1995); U.S. v. Chagra, 669 F.3d 241, 247 (5th Cir. 1982); U.S. v. Zawaba, 39 F.3d 279, 284 (10th Cir. 1994).
14 Probable cause is a reasonable belief that a person has committed a crime. The test the court of appeals employs to
determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the
officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or
is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992).

4. grand jury, generally rests entirely in his discretion.”15 Prosecutors may decide what charges to
bring16 , when to bring charges17, and in what jurisdiction. A prosecutor has far reaching
authority to decide whether to investigate18, grant immunity19, negotiate a plea bargain20, and
dismiss charges.21
A. Void-for-Vagueness as Grounds for Overturning the Conviction
Criminal statutes may violate the Due Process Clause of the Fourteenth Amendment if
the statute is “unconstitutionally vague.”22 For a criminal statute to be unconstitutionally vague,
it must fail to “define the criminal offense with sufficient definiteness that ordinary people can
Page 4 of 35
15 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
16 U.S. v. LaBonte, 520 U.S. 751, 762 (1997). (stating that “[b]road prosecutorial discretion is integral feature of the
criminal justice system.”); U.S. v. Batchelder, 443 U.S. 114, 123-5 (1979) (stating that “[p]rosecution under any
statute violated by defendant proper, without regard to penalty, as long as not discriminatory.”)
17 See U.S. v. Lovasco, 431 U.S. 783, 795-6 (1977) (discussing that this is analyzed under due process framework).
18 See U.S. v. Derrick, 163 F.3d 799, 824-5 (4th Cir. 1998).
19 See, e.g., U.S. v. Flemmi, 225 F.3d 78, 87 (1st Cir. 2000) (“A United States Attorney's authority to grant use
immunity is implied from her statutory authority to make decisions anent prosecution”); U.S. v. Burns, 684 F.2d
1066, 1077-78 (2d Cir. 1982) (stating that absent a prosecutor's discriminatory use of immunity to gain tactical
advantage or force a witness to invoke 5th Amendment privilege, the court will not grant statutory immunity to
defense witness); U.S. v. Moussaoui, 365 F.3d 292, 302-03 (4th Cir. 2004) (stating that the power to grant use
immunity is exclusively reserved to executive branch under Immunity Act), vacated in part on other grounds, 382 F.
3d 453 (4th Cir. 2004); U.S. v. Talley, 164 F.3d 989, 997-98 (6th Cir. 1999) (stating that the power to grant immunity
to defense witnesses reserved to prosecutor unless grants of immunity to prosecution witnesses make evidence
“egregiously lopsided”); U.S. v. George, 363 F.3d 666, 671 (7th Cir. 2004) (discussing how the power to grant use
immunity delegated exclusively to executive branch; prosecutor had discretion to deny witness use immunity based
on desire to collect evidence to use against him if he violated plea agreement); U.S. v. Capozzi, 883 F.2d 608, 614
(8th Cir. 1989) (stating that the power to grant immunity to defense witnesses rests with the prosecutor absent
showing of prosecutorial misconduct); U.S. v. Alvarez, 358 F.3d 1194, 1216 (9th Cir. 2004) (discussing how the
government could not be ordered to grant immunity because witness would not directly contradict government
witnesses). But see, e.g., U.S. v. Angiulo, 897 F.2d 1169, 1191-92 (1st Cir. 1990)(stating that the court may order
prosecutor to grant immunity or face judgment of acquittal when prosecutor's intimidation tactics cause potential
witness to invoke 5th Amendment and withhold exculpatory testimony); U.S. v. Hamilton, 46 F.3d 271, 278 (3d Cir.
1995) (although the decision not to grant immunity is within prosecutor's discretion, there may be procedural
consequences associated with determining whether a witness is unavailable to testify, among other things).
20 See U.S. v. Gonzalez-Vazquez, 219 F.3d 37, 43 (1st Cir. 2000).
21 See U.S. v. Goodson, 204 F.3d 508, 512-3 (4th Cir. 2003)
22 Kolender v. Lawson, 462 U.S. 352, 357 (1983).

5. understand what conduct is prohibited” or fail to establish guidelines to prevent “arbitrary and
discriminatory enforcement” of the law.23 “The most meaningful aspect of the vagueness
doctrine is… the requirement that a legislature establish minimal guidelines to govern law
enforcement.”24 A vague law impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.”25
The paramount void-for-vagueness case is Smith v. Goguen. In Smith v. Goguen, the
defendant was convicted of violating the Massachusetts flag-misuse statute for wearing a small
United States flag sewn to the seat of his trousers.26 The relevant part of the statute read:
“Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the
flag of the United States…, whether such flag is public or private property…,
shall be punished by a fine of not less than ten nor more than one hundred dollars
or by imprisonment for not more than one year, or both.”27
Goguen was not charged for any physical desecration of the flag, but rather for ‘publicly
treat[ing] contemptuously the flag of the United States…”28 He was found guilty after a jury
trial and sentenced to six months in the Massachusetts House of Corrections.29
Page 5 of 35
23 Hill v. Colorado, 530 U.S. 703, 732 (2000), citing Kolender, 462 U.S. at 357 and Chicago v. Morales, 527 U.S.
41, 56-57 (1999). See also U.S. v. Red Frame Parasail, Buckeye Model Eagle 503 (serial number 4159), 160 F.
Supp. 2d 1048 (D. Ariz. 2001). (stating that a “criminal statute may be void for vagueness under Due Process
Clause if…it grants too much discretion to law enforcement authorities without standards to avoid arbitrary and
discriminatory enforcement”).
24 Smith v. Goguen, 415 U.S. 566, 574-75 (1974).
25 See Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).
26 Smith, 415 U.S. at 568.
27 Id. at 569.
28 Id. at 570.
29 Id.

6. On appeal, Goguen’s conviction was reversed on the due process doctrine of vagueness.30
“The legislatures failed to set reasonably clear guidelines for law enforcement officials and triers
of fact in order to prevent ‘arbitrary and discriminatory enforcement.’”31 Here, the court
determined that “(w)hat is contemptuous to one man may be a work of art to another.”32 Thus,
the statutory language under which Goguen was charged needed to clearly distinguish treatment
of the flag that was criminal from treatment that was not.33 The court noted that this particularly
standardless sweep “allows policemen, prosecutors, and juries to pursue their personal
predilections.”34 Due Process requires that the legislature clearly inform as to what the State
commands or forbids35 so men of common intelligence will not be forced to guess at the meaning
of the criminal law.36 If arbitrary and discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. Otherwise, enforcement is constitutionally
impermissible as vague under the Due Process Clause.
Further, in Kolender, the Court held that a California disorderly conduct statute was
unconstitutionally vague for failing to “clarify what is contemplated by the requirement that a
suspect provide a ‘credible and reliable’ identification” to law enforcement after the officer
stopped the alleged violator.37 In that case, the statute failed to define what constituted credible
Page 6 of 35
30 Id. at 572.
31 Id. at 573-74.
32 Id. at 573.
33 Id. at 574.
34 Id. at 575.
35 Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
36 Connally v. General Construction Co., 269 U.S. 385, 391 (1926).
37 Kolender v. Lawson, 462 U.S. 352, 353-54 (1983).

7. and reliable identification.38 This standardless statute vested “complete discretion in the hands of
the police to determine whether the suspect had satisfied the statute and was free to go on his
way in the absence of probable cause for arrest.”39
This total and complete discretion without legislative guidance “furnished a convenient
tool for “harsh and discriminatory enforcement by local prosecuting officials, against particular
groups deemed to merit their displeasure.”40 The total lack of discretion “conferred on police a
virtually unrestrained power to arrest and charge persons with a violation.”41
Where the plain language of a statute is clear and unambiguous but produces an absurd
result, the court should not follow the literal language of the statute as it could not have been the
legislature’s intent to have such a result.42 While the plain language of a statute typically clearly
demonstrates intent, it cannot, in every instance, be counted on to have been written to
communicate exactly what it intended.43
B. Prosecutorial Discretion under Equal Protection
Constitutional rights are violated when government, state or federal, invidiously classifies
similarly situated people on the basis of the immutable characteristics with which they were
born.44 Most class distinctions in legislation are permissible if they bear some rational
Page 7 of 35
38 Id. at 354.
39 Id.
40 Id. at 360 citing Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972).
41 Id. citing Lewis v. City of New Orleans, 415 U.S. 130, 135 (1975).
42 FBI v. Abraham, 465 U.S. 615, 638 (1982). See also Citizen v. United States Dep’t of Justice, 491 U.S. 440, 470
(1989).
43 Abraham, 465 U.S. at 638 (O’Conner, J., dissenting)
44 U.S. Const. amend. XIV; Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 477-78 (1981) (J.
Stewart concurring).

8. relationship to a legitimate governmental objective provided they are not based on one’s race,
religion, or other arbitrary classification.45
The first case to use the Equal Protection clause as a basis for selective prosecution was
Yick Wo v. Hopkins.46 In that case, petitioner Yick Wo, a man of Chinese descent, ran a laundry
business in the city of San Francisco for 22 years.47 He was arrested for violation of Order No.
1,559 which said in part:
“Section 1. It shall be unlawful…for any person or persons to establish,
maintain, or carry on a laundry, within the corporate limits of … San
Francisco, without having first obtained the consent of the board of
supervisors…
Section 3. Any person who shall violate any of the provisions of this order
shall be deemed guilty of a misdemeanor, and upon conviction thereof shall
be punished by a fine of not more than one thousand dollars, or by
imprisonment in the country not more than six months, or by both such fine
and imprisonment.”
After the passage of this order, the board of supervisors refused to grant consent to Yick
Wo and 200 of his similarly situated countrymen with the exception of one party.48 Other parties
of different ethnicities were almost unanimously granted consent.49
The Court determined that the ordinance allowed the board of operators to exercise the
order arbitrarily.50 In Yick Wo, the facially-neutral law was exercised almost exclusively against
Page 8 of 35
45 Vance v. Bradley, 440 U.S. 93, 97, 99 (1979). (“The Constitution presumes that, absent some reason to infer
antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial
intervention is generally unwarranted no matter how unwisely we may think a political branch has acted”).
46 118 U.S. 356 (1886).
47 Yick Wo, 6 S.Ct. at 1065-6.
48 Id. at 1066
49 Id. at 1066
50 Id. at 367.

9. those of Chinese origin.51 The Court determined that they were unequally and unjustly
discriminatory in their administration against a particular class of people.52 The law itself must
be fair on its face, impartial in its appearance, and administered by public authority without an
evil eye or an unequal hand.53 Thus, law enforcement may not enforce a facially fair criminal
statute as if it was explicitly directed only at a group similarly defined along arbitrary, invidious
lines.54
However, there is danger in applying the Yick Wo standard to criminal prosecutions.
Using that standard would allow culpable, guilty parties to escape criminal prosecution if law
enforcement did not prosecute all those that could be convicted under a criminal statute.55 Thus,
courts have limited the selective prosecution to instances where it is based on arbitrary
classifications unrelated to law enforcement policies such as race and religion.56 Prosecutors
enjoy broad discretion in being selective and determining the specific circumstances under which
Page 9 of 35
51 Id. at 1066.
52 Id. at 373.
53 Id.
54 Id.
55 John S. Herbrand, What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide Valid
Defense in State Criminal Proceedings,95 A.L.R.3d 280 § 2[a] (originally published in 1979) (discussing that “[i]t
has frequently been contended that the rationale of the Yick Wo case does not apply to the enforcement of penal laws.
It has been argued that since no one has a right to commit a crime, an individual who has violated a criminal statute
may not justifiably complain that the discriminatory enforcement of a statute deprives him of equal protection of the
law”).
56 Id. (stating that “[g]enerally, the elements of the defense are that while others who are similarly situated to the
defendant are not generally prosecuted for conduct similar to that for which the defendant is being prosecuted, the
defendant has been intentionally and purposefully singled out for prosecution on the basis of an arbitrary or
invidious criterion.”)

10. established punitive sanctions should be invoked without running afoul of constitutional
restrictions regarding their decision-making.57
Alleged unequal treatment, which may result from non-arbitrary selective enforcement or
laxity, has never been considered a denial of equal protection.58 Because of the limited resources
of law enforcement, generally, the mere failure of law enforcement to prosecute or enforce the
law against all other violators is insufficient to establish a defense of selective prosecution as to
hold otherwise would result in a complete lack of convictions should any violator not be
prosecuted for any reason.59
A prosecutor’s decision to bring charges very rarely violates the Equal Protection Clause
unless the prosecution is determined to be selective.60 In order to demonstrate that the
prosecution was unconstitutionally selective, a defendant must show both: (1) that they received
disparate treatment61, (2) and that the prosecution was improperly motivated.62 Disparate
treatment has arisen where others who were similarly situated were not prosecuted and the
Page 10 of 35
57 Id. (concluding that “[b]ecause of the wide range of discretion which a prosecutor has in determining who should
be prosecuted, and because of the limited resources of law enforcement officials, it is generally held that the mere
failure of law enforcement officials to prosecute or enforce the law against other violators is insufficient to establish
the defense of discriminatory prosecution since to hold otherwise would result in no one's being convicted should
any violator not be prosecuted.”
58 See Oyler v. Boles, 368 U.S. 448 (1962). (holding that a “state recidivist statute charged against some but not all
of potential class not, in itself, a violation of equal protection of laws absent selection deliberately based upon
unjustifiable standards such as race, religion, or other arbitrary classification.”); See also Cameron v. Johnson, 390
U.S. 611 (1968).
59 See Oyler, 368 U.S. at 455-56. (stating that a “[f]ailure to prosecute all offenders who violated the statute because
of a non-deliberate policy is not by itself a violation of equal protection under the Fourteenth Amendment”); People
v. Sperl, 54 Cal. App. 3d 640 (Cal Ct. App. 1976) (reiterating that “[t]he equal protection guaranty simply prohibits
prosecuting officials from purposely and intentionally singling out individuals for disparate treatment on an
invidiously discriminatory basis”).
60 Richard Bloom, Twenty-Eighth Annual Review of Criminal Procedure II. Preliminary Proceedings:
PROSECUTORIAL DISCRETION, 87 Geo. L.J. 1267, 1271 (1999).
61 See Ah Sin v. Wittman, 198 U.S. 500 (1905).
62 Wayte v. U.S., 470 U.S. 598, 602-3 (1985).

11. selection is “deliberately based upon an unjustifiable standard such as race, religion, or other
arbitrary classification.”63 There is a presumption by the courts that every prosecution is
undertaken in good faith.64 Thus, a defendant challenging an indictment on selective prosecution
grounds bears an exceptionally heavy burden.65 The prosecution needs only pass the rational
basis test.66
In Wayte v. United States, the defendant was charged with willfully failing to register with
the Selective Service System.67 Defendant was one of thirteen prosecuted under the statute out
of an estimated 674,000 non-registrants.68 Defendant moved for dismissal of the indictment on
the grounds that he was a victim of selective prosecution.69
Applying the test for selective prosecution test stated above, the Court held that the
defendant had only shown that those eventually prosecuted, along with many not prosecuted,
Page 11 of 35
63 E.g. U.S. v. Hoover, 727 F.3d 387, 389 (5th Cir. 1984) (holding that prosecuting three union members prosecuted
out of 300 persons was sufficient to meet first prong); U.S. v. Hazel, 696 F.3d 473, 475 (6th Cir. 1983) (holding that
proof that two outspoken members of tax protest group were prosecuted out of 34 other blameworthy members who
were not prosecuted was sufficient to pass first prong); U.S. v. Lopez, 71 F.3d 954, 963 (1st Cir. 1995)(holding that
the prosecution was not selective when government addressed other violators civilly instead of criminally).
64 United States v. Lewis, 517 F.3d 20, 25 (1st Cir. 2008) citing U.S. v. Armstrong, 517 U.S. 456, 464; United States
v. Graham, 146 F.3d 6, 9 (1st Cir. 1998) (discussing that once made, these decisions enjoy a presumption of
regularity (which includes a presumption of good faith)).
65 See McCleskey v. Kemp, 481 U.S. 279 (1987). In this case, the defendant offered the Baldus study which showed
a significant disparate impact on defendants due to the race and socioeconomic level of the defendant. The Supreme
Court found this data to be insufficient to show either selective prosecution or cruel and unusual punishment under
the Eighth amendment. Id.
66 See generally Wayte v. U.S., 470 U.S. 598 (1985). Since petitioner is not a member of a suspect class, and no
fundamental right of his has been affected, the rational basis test is appropriate for analyzing petitioner's claim of
selective or discriminatory prosecution. Owens v. Ventura County Superior Court, 42 F. Supp. 2d 993, 1000 (C.D.
Cal. 1999) citing San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 44 (1973).
67 Wayte, 470 U.S. at 604.
68 Id.
69 Id.

12. reported themselves as violating the law.70 Defendant had not shown that the enforcement policy
selected non-registrants on the basis of any improper motive.71
The court further held that for the defendant to show that the Government had a
“discriminatory purpose,” the Government must have intended to have a discriminatory effect for
a selective prosecution claim to be valid.72 “‘Discriminatory purpose’… implies more than…
intent as awareness of consequences. It implies that the decision maker…selected or reaffirmed
a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse
effects upon an identifiable group.”73 The defendant in Wayte failed to show that the
Government prosecuted him because of his protest activities.74
Courts have taken two vastly different approaches in determining the similarly situated
standard when applied to strict liability offenders. The Supreme Court has not made clear how to
determine whether an un-prosecuted person is “similarly situated” especially when both can be
charged under the same offense. Some courts agree with the Ohio Supreme Court and find that
parties are similarly situated whenever they commit the statutory elements of an offense.75 In
these jurisdictions, a defendant can show that similarly situated individuals were not prosecuted
by showing that other uncharged individuals committed the same crime.76 Other courts have
Page 12 of 35
70 Id. at 609.
71 Id.
72 Id. at 610.
73 Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).
74 Wayte, 470 U.S. at 610.
75 See e.g., U.S. v. Arenas-Ortiz, 339 F.3d 1066, 1068-69 (9th Cir. 2003); State v. Holm, 137 P.3d 726, 751 (Utah
2006).
76 Ohio v. D.B., 2011 WL 5892319 at *6 (2011). (Reply in Support of Petition for Writ of Certiorari).

13. adopted a stricter standard which holds that offenders are similarly situated only if “no
distinguishable legitimate prosecutorial factors exist that might justify making different
prosecutorial decisions with respect to them.”77 In those jurisdictions, the defendant must show
that (1) the uncharged individuals committed the same offense, and (2) they committed the
offense in “substantially the same manner.”78
The Constitution does not preclude the enactment and prosecution of strict-liability
offenses in a criminal context.79 Further, strict-liability statutes and offenses do not contravene
any explicit provision of the Constitution.80 The burden to prove a strict liability offense is
minimal. To prove a violation of a strict liability statute, the prosecutor need only prove that the
accused engaged in a voluntary act, or an omission to perform an act or duty, which the accused
was capable of performing.81
Most states, including Ohio, have historically taken the position that it is illegal to have
sex with minors under a certain age, even with their consent.82 These statutes eliminate the
prosecutor’s need to prove a culpable mental state where the child is a victim to the sexual acts to
protect their vulnerability, and to require that adults who engage in sexual acts with children
Page 13 of 35
77 U.S. v. Khan, 461 F.3d 477, 498 (4th Cir. 2006); U.S. v. Lewis, 517 F.3d 20, 25-28 (1st Cir. 2008); U.S. v. Parham,
16 F.3d 844, 846-47 (8th Cir. 1994); U.S. v. Deberry, 430 F.3d 1294 (10th Cir. 2005); U.S. v. Smith, 231 F.3d 800,
810 (11th Cir. 2000); State v. Kramer, 637 N.W.2d 35, 42-43 (Wis. 2001).
78 U.S. v. Smith, 231 F.3d 800, 810 (11th Cir. 2000).
79 See generally Morissette v. U.S., 342 U.S. 246 (1952).
80 George Blum et al., 21 Am. Jur. 2dCriminal Law § 132 (2012) citing People v. Trotter, 209 Mich. App. 244 (Mich.
Ct. App. 1995); Philman’s Inc. v. City of West Carrollton, 577 F.Supp. 1380 (S.D. Ohio 1983).
81 Id. citing People v. Prise, 135 Misc. 2d 363 (Sup. Ct. 1987), order aff'd, 151 A.D.2d 787 (2d Dep't 1989); State v.
Olson, 356 N.W.2d 110 (N.D. 1984);State v. Squires, 671 N.E.2d 627 (Ohio Ct. App. 1996).
82 See table of states and their age of consent and statute. Donald T. Kramer, Legal Rights of Children: § 14:12.
Sexual Activity 1 Leg. Rts. Child Rev. 2D § 14:12 (2011).

14. assume the risk of their actions.83 In Michael M. v. Superior Court of Sonoma County, the Court
held that one partner to a consensual sexual relationship between minors may be charged under a
statutory rape statute.84 The court recognized that even though the statute was only applicable to
the male in this context, a gender-neutral statute would render the same effect as prosecutor’s can
prosecute just the man under their constitutionally permissible discretion.85 Thus, the Court
recognized the constitutionally permissible discretion of the prosecutor to charge one party of a
class of offenders who have violated a strict liability offense and not the others even if the
charged party is a part of the protected class provided there is a rational basis.86
It should be noted that the particular criminal statute is not analyzed for discriminatory
effect in Equal Protection analysis.87 Whether the defendant actually violated the statute in
question is irrelevant to the analysis provided the prosecution indicted the defendant for a proper
purpose.88
Page 14 of 35
83 Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 Am. U. L.
Rev. 313, 359 (2003).
84 450 U.S. 464 (discussing that lower federal courts and state courts have almost uniformly concluded that statutory
rape laws are constitutional);See also id. at fn 1.
85 Id. at fn 9. (“Petitioner contends that a gender-neutral statute would not hinder prosecutions because the
prosecutor could take into account the relative burdens on females and males and generally only prosecute males.
But to concede this is to concede all. If the prosecutor, in exercising discretion, will virtually always prosecute just
the man and not the woman, we do not see why it is impermissible for the legislature to enact a statute to the same
effect”).
86 See note 45.
87 See Herbrand supra note 55 (discussing that “this annotation is not concerned with whether the particular criminal
statute involved is, in itself, discriminatory. The cases within this annotation presume that the statute on its face is
not discriminatory and does not set up unconstitutional classes of violators. Also not within the scope of this
annotation are cases dealing with bad-faith prosecutions. While discriminatory prosecution and bad-faith cases are in
many respects factually similar, there are differences in the separate defenses, since equal protection principles do
not provide the underpinnings for the defense of bad-faith prosecution.”).
88 Id.

15. III. Statement of the Case
A. Factual Analysis
On August 1, 2007, the Licking County Prosecutor’s Office filed a complaint against
D.B., a 12 year old minor, for ten counts of rape occurring in July 2007.89 D.B. was charged
with violating O.R.C. § 2907.02(A)(1)(b)90, which criminalizes what is commonly known as
“statutory rape.”91 Offenders are strictly liable for engaging in sexual conduct with children
under the age of 13 even if the offender is also under the age of consent.92 The statute furthers
the state’s interest in protecting young children.93
The complaint alleged that D.B. engaged in sexual acts with two young males: A.W., age
12, and M.G., age 11.94 All three youths were close friends who attended the same school and
were on the same sports teams.95 D.B. was significantly larger than other children his age but
was not aggressive and never used his size to bully or intimidate other children.96 After D.B.’s
father discovered the boys’ sexual acts, he reported the actions of the boys to the police.97 The
Page 15 of 35
89 In re D.B., 129 Ohio St.3d 104, ¶2 (2011).
90 OHIO REV. CODE § 2907.02(A)(1) (2007) (“No person shall engage in sexual conduct with another who is not the
spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when
any of the following applies:…(b) The other person is less than thirteen years of age, whether or not the offender
knows the other person).
91 Id. at ¶13.
92 Id. No force element is necessary because a child under the age of 13 is legally presumed to be incapable of
consenting to sexual conduct. Id.
93 1973 Legislative Service Commission comments to Am.Sub.H.B. No.511, 134 Ohio Laws, Part II, 1866.
94 In re D.B., 129 Ohio St.3d at ¶12. (there were 9 counts relating to conduct with M.G.; 1 count relating to conduct
with A.W.)
95 In re D.B., 2009 WL 5062017 at ¶2. (2010).
96 In re D.B., 129 Ohio St.3d at ¶6.
97 In re D.B., 2009 WL 5062017 at ¶2. (2009).

16. police began questioning the boys individually. A.W. told the police that he observed D.B. and
M.G. engage in anal sex, always initiated by D.B., where D.B. would “bribe” M.G. with video
games to engage in sexual conduct.98 A.W. also told police that D.B. would use physical force to
coerce M.G. to engage in sexual conduct.99 However, D.B. and M.G. did not engage in sexual
conduct until M.G. himself agreed to the activity.100
B. Lower Courts Proceedings
D.B. filed a motion to dismiss the claims stating: (1) [the lack of an evidentiary
foundation]; and (2) application of O.R.C. § 2907.02(A)(1)(b) in this case violates D.B.’s federal
and state rights to due process and equal protection as the statue is vague, overbroad, and the
prosecutors engaged in selective prosecution.101 The prosecution amended the charges dropping
the count relating to conduct with A.W. and amended four of the nine claims to allege that D.B.
engaged in forcible conduct or used verbal threats to engage in the sexual conduct with M.G.
under O.R.C. § 2907.02(A)(2)102.103 Following the prosecution’s case, the court dismissed the
four counts alleging force under O.R.C. § 2907.02(A)(2), but not the five charges under O.R.C §
2907.02(A)(1)(b) for which he was found guilty.104 At the dispositional hearing, the court
committed D.B. to the Department of Youth Services for a minimum of 5 years to a maximum of
Page 16 of 35
98 In re D.B., 129 Ohio St.3d at ¶5.
99 Id.
100 Id. at ¶6.
101 Id. at ¶3.
102 OHIO REV. CODE § 2907.02(2) (2007) (“Rape: No person shall engage in sexual conduct with another when the
offender purposely compels the other person to submit by force or threat of force”).
103 In re D.B., 129 Ohio St.3d at ¶3.
104 Id. at ¶7.

17. his 21st birthday, suspended a commitment, and placed D.B. on indefinite probation.105 Further,
the court ordered D.B. to attend counseling and group therapy.106
D.B. appealed to the Fifth District Court of Appeals arguing that O.R.C. § 2907.02(A)(1)
(b) as applied to the facts of this case violated his federal rights to due process and equal
protection, and that the juvenile court abused its discretion in adjudicating him delinquent for
rape.107 The Court of Appeals upheld the conviction.108
C. Ohio Supreme Court’s Decision
D.B. further appealed to the Ohio Supreme Court who accepted jurisdiction over D.B.’s
proposition of law that the application of O.R.C. § 2907.02(A)(1)(b) to a child under the age of
13 violates the Due Process and Equal Protection Clauses of the United States Constitution.109
D.B. argued that O.R.C. § 2907.02(A)(1)(b) was unconstitutional as applied to him
because the statue failed to provide guidelines that designate which actor is the victim and which
is the offender, resulting in arbitrary and discriminatory enforcement.110 O.R.C. § 2907.02(A)(1)
(b) fails to give prosecutors guidelines as to which actor to charge in a crime where both parties
are under thirteen, the age of consent in Ohio.111 As a strict liability offense, O.R.C. §
Page 17 of 35
105 Id. at ¶9.
106 Id.
107 See In re D.B., 2009 WL 5062017 at ¶9-12 (2010).
108 In re D.B., 129 Ohio St.3d at ¶10.
109 Id. at ¶11; See also id. at fn 2 (“Because appellant argued only a violation of his federal constitutional rights of
due process and equal protection during his appeal to the Fifth District, we will not address his allegations regarding
the state constitution in this opinion.”).
110 In re D.B., 129 Ohio St.3d at ¶20.
111 Id. at ¶24. Merit Brief of Appellant, D.B. 2010 WL 3498429 at *13. (2011).

18. 2907.02(A)(1)(b) only requires proof of sexual conduct with a child under thirteen.112 Thus,
anytime a group of children under the age of thirteen engage in sexual conduct, all of them can
be classified as both the offender and the victim.113
The court unanimously agreed finding this to be an example where the prosecutors were
tempted to label one child as the offender and the other child as a victim without guidance from
the legislature.114 The prosecutor’s theory of D.B. as the aggressor was consistent with a
violation of R.C. 2907.02(A)(2), which prescribes rape by force.115 However, the prosecutor’s
rationale for charging D.B. is incompatible with a statutory rape violation.116
D.B. argued that O.R.C. § 2907.02(A)(1)(b) is unconstitutional as a violation of the Equal
Protection clause as the statute was applied in an arbitrary manner. The court agreed in a 6-1
decision117 holding that “The Equal Protection Clause directs that ‘all persons similarly
circumstanced shall be treated alike.”118 Here, since both parties were under the age of 13, both
should have been charged with the offense.119 The court found this to be an impermissible
Page 18 of 35
112 OHIO REV. CODE § 2907.02(A)(1)(b) (2007) has no culpable mental state requirement. Only requires the victim
to be “less than thirteen years of age.”
113 Merit Brief of Appellant, D.B. 2010 WL 2498429 at *13 (2011).
114 In re D.B., 129 Ohio St.3d at ¶25.
115 Id.
116 Id.
117 Cupp, J. concurred with the court on due process analysis only.
118 In re D.B., 129 Ohio St.3d at ¶29 citingF.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). Plyer v.
Doe, 457 U.S. 202, 216 (1982).
119 In re D.B., 129 Ohio St.3d at ¶30. “Application here to a single party violates the Equal Protection Clause’s
mandate that persons similarly circumstanced shall be treated alike.”

19. ‘absurd result’ exception to following legislative intent.120 The court found no prosecutorial
exception provided by the legislature in O.R.C. § 2907.02(A)(1)(b) for charging an offense when
every party involved in the sexual conduct is under the age of 13.121
The United States Supreme Court denied certiorari in this case.122
IV. Analysis
D.B. challenged the verdict “as applied” to the particular facts in this case.123 In an as-
applied challenge, the challenger contends that application of the statute in the particular context
in which he has acted, or in which he proposes to act, is unconstitutional.124
It may seem inconsistent to say that a statute is so vague as to grant too much power to
law enforcement authorities as a matter of due process but that public enforcers are offered a
great deal of discretion as a matter of equal protection. The reason is simple: Due Process
applies to the legislation as applied in this situation; Equal Protection applies to the enforcers
conduct in prosecuting. Due Process affects how the piece of legislation can apply to a party so
as it does not lead to an absurd result. Precedent and policy apply to that particular legislation.
Page 19 of 35
120 See Citizen v. United States Dep’t of Justice, 491 U.S. 440 (1989) (“When used in a proper manner, this narrow
exception to our normal rule of statutory construction does not intrude upon the lawmaking of Congress, but rather
demonstrates a respect for the coequal Legislative Branch, which we assume would not act in an absurd way.”)
Further, while the plain language interpretation of a statute enjoys a presumption in its favor, it cannot always be
counted on to have said what it meant or to have meant what it said. See FBI v. Abramson, 456 U.S. 615, 638
(1982).
121 In re D.B., 129 Ohio St.3d at ¶30. “The plain language makes it clear that every person who engages in sexual
conduct with a child 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.” Id.
122 In re D.B., 132 S.Ct. 846 (2011).
123 In re D.B., 129 Ohio St.3d at ¶12, ¶20.
124 See Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011 (1992) (Scalia, J., dissenting).

20. Equal Protection affects how a prosecutor applies the policies and procedures of how and
enforces their duties under the law.
This difference between selective prosecution under Due Process and Equal Protection
should be analyzed before delving into the applications of the facts to this case. An overly broad
holding has a much wider impact than a Due Process holding in proceedings like D.B. because it
affects the entire way that prosecutors can conduct themselves when deciding when, where, and
against whom to bring charges. This discretion is based upon a multitude of factors which, for
better or worse, have been left for one person to decide based on all the intangibles that have to
be considered in administering punishment in society. Any subrogation of this discretion should
be for the strongest of reasons.
Thus, while the Ohio Supreme Court exercised the correct judgment in In re D.B., the
decision failed to take into consideration many policy considerations affecting strict liability
offenses and their enforcement. Applying the analysis used by the court here would result in
enforcement officials having to prosecute all members of a class severely compromising the
ability of prosecutors to do their job.
A. D.B.’s Constitutional Rights Under the Due Process Clause of the Fourteenth Amendment
Were Violated
A criminal statute is ‘void for vagueness’ under the Due Process Clause of the Fourteenth
Amendment if it grants too much discretion to law enforcement authorities without standards to
avoid arbitrary and discriminatory enforcement.125 When the plain meaning of the statute can be
interpreted in such a way as to have an absurd result, there is a presumption that that legislature
Page 20 of 35
125 See supra notes 22-25.

21. did not intend it.126 Here, O.R.C. § 2907.02(A)(1)(b) as applied to minors has such a result
because as juveniles, and have the same guarantees of Due Process that have been afforded to
adults.127 Furthermore, the statute is unconstitutionally vague as applied to minors.
1. Charging O.R.C. § 2907.02(A)(1)(b) to Minors Who Could Be Classified as Both
Perpetrators and Victims is an Absurd Result
Charging D.B. with the strict liability offense does not serve any of the purposes for
having strict liability rape laws for statutory rape.128 The single purpose of O.R.C. § 2907.02(A)
(1)(b) is “to protect a prepubescent child from the sexual advances of another, presumably older
person, because ‘engaging in sexual conduct with such a person indicated vicious behavior on
the part of the offender.”129 This same rationale has been emphasized by the courts as the
justification for strict liability rape statutes.130
Further, there is no presumption, because the defendant is a minor, that he was capable of
understanding that the conduct in which he was engaging in was highly dangerous or risky.
Page 21 of 35
126 See TVA v. Hlll, 437 U.S. 153 (1978). (overruled on other grounds).
127 See Kent v. United States, 383 U.S. 541 (1966) (holding that a juvenile must be afforded due process rights under
the Fourteenth Amendment, specifically the waiver of jurisdiction of the juvenile courts); In re Gault, 387 U.S. 1
(1967) (holding that proceedings for juveniles had to comply with due process rights); In re Winship, 397 U.S. 358
(1970) (holding that the “preponderance of the evidence” burden of proof violated due process and the strict
“reasonable-doubt” standard must be applied to both adults and juveniles alike).
128 See Carpenter supra note 83, at 317. “The ‘public welfare offense’ model where the majority of jurisdictions,
either by legislative enactment or court decision, have determined that the protection of the community demands
strict regulation of sexual activity, and with that goal, the notion that strict liability best serves this purpose. Under
this structure, a good faith mistaken belief of the victim's age is irrelevant because the defendant assumes the risk
that the victim may be young enough to fall within the statute's protection.” Id.
129 Committee Comment to Am. Sub. H.B. No. 511 (134 Ohio Laws, Part II, 1866).
130 See e.g., Owens v. State, 724 A.2d 43, 52-53 (Md. Ct. App. 1999) (State has an overwhelming interest in
protecting young children from risks which outweighs any interest an individual may have in engaging in sexual
relations with children near the age of consent; See also U.S. v. Ranson, 942 F.2d 775, 777 (10th Cir. 1991) (Strict
liability rape laws are justified as they protect children from sexual abuse by placing risk of mistake as to age of
child on the older, more mature person who chooses to engage in sexual activity with one who may be young
enough to fall under the statute’s protected class).

22. Minors who do not have the ability to consent to sexual activities cannot logically appreciate the
consequences of their sexual conduct.131 Thus, D.B., as a minor under the age of 13 who is
presumed to lack to ability to consent, cannot be charged with violating O.R.C. § 2907.02(A)(1)
(b) as it is illogical to assume that he could consent to the sexual activity with which he is
charged.132 To hold otherwise would make all participants simultaneously a perpetrator and a
victim.133
Thus, the assignment of criminal liability to D.B. would completely contravene the
purpose of a statutory rape criminal statute: to protect those who do not have the capacity to
consent to their actions. In the interpretation of a particular statute, the court should look to the
original purpose behind the statute and the mischief the statute was trying to resolve.134 In this
case, even though the plain meaning of the statute supports an indictment for all minor parties
involved, the finding of some parties to be perpetrators in the absence of an aggravating
circumstance is absurd.
In this case, had the party that D.B. engaged in sexual activities been 14, D.B. would
clearly be the victim under the plain meaning of O.R.C. § 2907(A)(1)(b) despite the factors that
the prosecutor’s determined made D.B. the only culpable party of the group. Thus, the factors
used by the prosecutors in D.B. are irrelevant, if not explicitly contrary, to the purpose for having
a strict liability statutory rape statute.
Page 22 of 35
131 See Carpenter supra note 83, 53 Am. U. L. Rev. at 338-339.
132 Brief of Amici Curiae, Juvenile Law Center, et al., in Support of Appellant, D.B. In re D.B.: A delinquent child.,
2010 WL 3498430 at *32 (2010).
133 Id.
134 See generally General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004); West Virginia University
Hospitals Inc. v. Casey, 499 U.S. 83 (1991).

23. 2. ORC 2907.02(A)(1)(b) is Unconstitutionally Void for Vagueness As Applied to
Consenting Minors.
A complete lack of guidelines or discretion creates constitutionally impermissible
enforcement problems. In D.B., the legislature offered no discretion as to charging members of
the protected class for statutory rape. Therefore, as a matter of law, O.R.C. § 2907.02(A)(1)(b) is
void for vagueness when the only parties are minors.
Here, the lack of guidance could have enabled policemen, prosecutors, judges, and juries
to pursue their own personal predilections. This potentially limitless power is unconstitutional
under Smith v. Goguen.135 D.B. argued that because of D.B.’s role as the “male” in the
homosexual relationship and the traditional charging of only the male party in statutory rape
situations. D.B. claims that this very potential deduction is sufficient to find the statute void as
applied to this situation.
The state’s contention is that this decision would abrogate prosecutorial discretion when
both parties involved are minors regardless of the circumstances. As it was an “as applied”
challenge to O.R.C. § 2907.02(A)(1)(b), the court limited its holding such that the statute was
void for vagueness only when applied to this particular subsection when applied to sexual
relations among consenting minors.136 Thus, the court only set precedent in regards to O.R.C. §
2907.02(A)(1)(b), not any other rape statute or strict liability offense.137 In no way does the
Page 23 of 35
135 See supra notes 26-36.
136 In re D.B., 129 Ohio St.3d at ¶12, ¶20.
137 United States v. Eichman, 496 U.S. 310, 312 (1990) (A statute may be found unconstitutional as applied to a
particular set of facts). Ada v. Guam Soc. of Obstetricians and Gynecologists, 506 U.S. 1011 (1992) (Scalia, J.
dissenting).(In an as-applied challenge, the challenger “contends that application of the statute in the particular
context in which he has acted is unconstitutional).

24. decision prohibit the prosecutor from prosecuting other minors who violate different provisions
of the rape criminal statute.138
An unfettered discretion similar to Smith139 and Kolender140 was granted to law
enforcement in D.B. when faced with the choice of whom to charge with statutory rape under
O.R.C. § 2907.02(A)(1)(b) when all participants were consensual minors. Even though O.R.C. §
2907.02(A)(1)(b) appears to clearly identify the class of persons who may be culpable under the
offense, a more in-depth reading shows a severe contradiction.
Through its designation that all parties under thirteen are victims regardless of any other
consideration, the statute creates a presumption that any minor is incapable of consenting to
sexual conduct with another.141 Despite the unambiguous language of these two provisions, the
statute fails to give guidance as to which actor, if any, to charge with rape under O.R.C. §
2907.02(A)(1)(b) when all parties are consenting minors.142 If the prosecutor charges a party
under the statute, they violate the implied presumption that minors are always victims, as they
cannot consent to sexual conduct.143 Thus, if the prosecutor does not charge a party, they are not
protecting the minors that are supposed to be protected under the statute.
Page 24 of 35
138 These statutes include force or threat of use of force under ORC 2907.02(A)(2); preventing resistance by
substantially impairing a person’s judgment or control by administering any drug, intoxicant, or controlled substance
by deception under ORC 2907.02(1)(a).
139 See discussion supra 26-36.
140 See discussion supra 37-41.
141 Merit Brief of Appellant, D.B. In re D.B.: A Delinquent Child. 2010 WL 3498429 at *9. (2010).
142 Id.
143 1973 Legislative Service Commission comments to Am.Sub.H.B. No.511, 134 Ohio Laws, Part II, 1866.

25. The Newark law enforcement’s use of characteristics not found in a plain meaning of the
statute is the exercise of unconstitutional, broad discretion forbidden in the Smith and Kolender
line of cases. The language of O.R.C. § 2907.02(A)(1)(b) contains no requirements or
considering factors relating to the culpability standards used in this case. In this case, the
prosecutors determined culpability for D.B. as he was the initiator of the sexual conduct,
significantly larger than the other children, and slightly older despite still being a minor.144
“Where inherently vague statutory language permits such selective law enforcement, there is a
denial of due process.”145 This selective law enforcement resulted in an unjust result for D.B.
and every other minor prosecuted for violating O.R.C. § 2907.02(A)(1)(b).
3. The statutory language does not need to be ambiguous in order to be
unconstitutionally vague.
Even though O.R.C. § 2907.02(A)(1)(b) has a seemingly clear and plain meaning,
applying the plain language against the purpose of the statute renders the statute explicitly
contradictory, and thus patently ambiguous. Because of this patent ambiguity, and the lack of
guidance from the legislature as to guidance where the parties involved are classified as both
perpetrators and victims, the statute should be determined to be unconstitutionally vague until
clarified by the legislature.
Page 25 of 35
144 Oral Arguments for D.B. http://www.supremecourtofohiomedialibrary.org/Media.aspx?fileId=128981 (“We
brought the charges against D.B. because he bribed the victims in this case through video games. This is why we
sought the force charge (under ORC 2907.02(A)(2))”)
145 Smith v. Goguen, 415 U.S. 566, 576 (1974).

26. Once the statutory language is found to be ambiguous, the court should look beyond the
text for other examples of legislative intent.146 In interpreting the statute, the court should look
to the purpose behind the statute and the legislative history behind the statute.147 The purpose of
the statute should be interpreted to effectuate the mischief the statute was trying to resolve.148
This purpovist analysis is known as the mischief rule.149
The mischief to be remedied by O.R.C. § 2907.02(A)(1)(b) is the sexual exploitation of
children who are legally unable to consent to sexual activity.150 Courts should not read a statute
in a manner in which it would not address the mischief addressed by the statute.151 For the
reasons discussed in Section IV(A)(1) of this note, applying O.R.C. § 2907.02(A)(1)(b) to any
minor in this case would expressly contradict the sole reasons for having a strict liability rape
provision for minors: to protect those that cannot legally consent. Further, applying O.R.C. §
2907.02(A)(1)(b) as written would require the charging of all the minors in this case, a truly
absurd application completely contravening the purpose of the statute.
Page 26 of 35
146 United States v. Villanueva-Sotelo, 515 F.3d 1234, 1237 (D.C. Cir. 2008) citing Staples v. United States, 511 U.S.
600, 605 (1994) (“[D]etermining the mental state required for commission of a federal crime requires ‘construction
of the statute and ... inference of the intent of Congress’” (omission in original) (quoting United States v. Balint, 258
U.S. 250, 253 (1922))).
147 General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 594-595 (2004) (stating that when the statute is
ambiguous or unclear, the statute should be read in light of the statute’s manifest purpose).
148 Id.
149 Id.
150 1973 Legislative Service Commission comments to Am.Sub.H.B. No.511, 134 Ohio Laws, Part II, 1866.
151 See Elliot Coal Min. Co., Inc. v. Dir., Office of Workers' Comp. Programs, 17 F.3d 616, 631 (3d Cir. 1994). (“We
understand that syntax and grammatical rules do not completely control issues of statutory interpretation”);
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1311 (9th Cir.1992) (Still, additional support for our parsing of
the text of the Act, insofar as it concerns liability for black lung benefits, can be found in the “mischief” rule,
discussed in the venerable Heydon's Case, 76 Eng.Rep. 637 (Ex.1584)). That canon of construction directs a court to
look to the “mischief and defect” that the statute was intended to cure, Id. at 638.

27. Thus, for all the foregoing reasons, the Supreme Court of Ohio decision in In re D.B. was
legally sound and in accord with precedent on the issue of statutory vagueness.
B. D.B.’s Constitutional Rights Under the Equal Protection Clause of the Fourteenth
Amendment Were Not Violated By the Prosecutors When O.R.C. § 2907.02(A)(1)(b) Was
Applied to Him But Not His Partners:
The prosecutors, through their broad discretion, have determined that the members of the
group are not similarly situated.152 This determination about culpability, not being exercised
selectively or vindictively, is sufficient under the law to justify the difference in treatment
between one member and the rest of a class of violators. Thus the Ohio Supreme Court, as well
as the Ninth Circuit, incorrectly applied the Equal Protection precedent for prosecutorial
discretion.
The Ohio Supreme Court failed to analyze this particular case under the Wayte v. U.S.
standard for selective prosecution, which is the appropriate standard for determining an equal
protection violation. In Wayte, the Court held that all persons similarly situated as violators of a
strict liability offense shall be treated alike is not consistent with precedent and creates a new
dangerous precedent for which convicted violators of strict liability sentences can be reversed
because other parties who also violated the statute were not prosecuted.
The Ohio Supreme Court’s decision directly conflicts with the Supreme Court’s holding
in Oyler v. Boles.153 The Court held in Oyler that the exercise of some selectivity by prosecutors
in the application of a recidivist statute where there were multiple violators was not, in itself, a
Page 27 of 35
152 Discussed supra note 96, the prosecutors felt D.B. coerced M.G. into engaging into sexual conduct as D.B. was
older, “significantly bigger,” the initiator of the sexual conduct, and the one who allegedly “bribed” the other minor
to induce submission. See Merit Brief of Licking County Prosecuting Att’y at 2-3, No. 2010-0240 (Ohio Oct. 13,
2010) (elaborating on evidentiary factors weighing in support of prosecutorial judgment to charge D.B. as the
perpetrator).
153 368 U.S. 448 (1962).

28. violation of equal protection.154 The defendants contended that this statute imposed a mandatory
duty on prosecutors to seek a penalty against all persons coming with the statutory standards.155
The Court found this conscious exercise of some selectivity in enforcement to be constitutionally
permissible provided the selection was not based upon an unjustifiable standard such as race,
religion, or other arbitrary classification.156 Thus under the Oyler and Wayte line of cases, for
D.B. to succeed on a dismissal of his conviction on equal protection grounds, he must show that
(1) he received disparate treatment (2) for a constitutionally improperly motivated purpose.157 In
very few cases has the evidentiary burden for a defense of discriminatory prosecution been
established.158
D.B. clearly received disparate treatment from the prosecutor in this case. D.B., M.G.,
and A.W. all violated the plain meaning of O.R.C. § 2907.02(A)(1)(b) by engaging in sexual
activities with each other, however, only D.B. was charged. Thus, D.B. was singled out from
those that were similarly situated. This singling out of one violator from a pool of multiple
violators of a plain meaning strict liability offense has been determined to be sufficient to show
that the defendant received disparate treatment in the enforcement of the law.159
Page 28 of 35
154 Id. at 456.
155 Id. at 455.
156 Id. at 456.
157 Wayte v. U.S., 470 U.S. 598, 602-3 (1985).
158 See Herbrand supra note 55. In fact, there is not a case in which a selective prosecution claim has been
successfully met at the appellate level. Id. There are several instances where the defendant has met the burden to
conduct further discovery to determine whether there was a selective or discriminatory prosecution. See generally
U.S. v. Thorpe, 471 F.3d 652 (6th Cir. 2006); State v. Streiff, 673 N.W.2d 831(Minn. 2004).
159 See U.S. v. Hazel, 696 F.2d 473, 475 (6th Cir. 1983). (Proof that only 2 members of a tax protest group were
prosecuted for tax violations even though he prosecution knew of 34 other violators in the group who were not
prosecuted is sufficient to satisfy the first prong of selective prosecution test.).

29. D.B. alleges that the prosecutor’s brought charges only against D.B. because of outmoded
stereotypes regarding punishing the male. However, the prosecution maintains that the charges
brought against D.B. because they thought D.B.’s conduct warranted indictment under O.R.C. §
2907.02(A)(2), rape by force.160 Following an investigation, the prosecution explicitly
determined that D.B.’s role as initiator and aggressor, plus the exchange of sexual acts for video
games was sufficient for an indictment.161 The charges under O.R.C. § 2907.02(A)(2) were
dismissed at the same time the fact-finder convicted under O.R.C. § 2907.02(A)(1)(b).162 Where,
in application to the strict liability offense, the result becomes ‘absurd’, the rationale behind the
initial charge should be taken into consideration.163 Thus, there was no change in the rationale
for bringing the charges before conviction under O.R.C. § 2907.02(A)(1)(b) and cannot be the
outmoded stereotypes that D.B. has alleged.
It is not constitutionally improper for the prosecution to discriminate when relating to
objective standards relating to culpability. The only recognized constitutionally improper
motives for prosecution are the same as for treating those differently who are otherwise similarly
situated include such as race164 or other arbitrary classifications.165 Even though the prosecutor’s
rationale for prosecution under O.R.C. § 2907(A)(1)(b) does not survive scrutiny under due
process, this does not necessarily mean the rationale is not sufficient to meet the much different
Page 29 of 35
160 The prosecutor felt that D.B.’s physical size and use of video games to “bribe” A.W. into sexual activities
justified the charge of rape by force under ORC 2907(A)(2). See supra notes 94-100.
161 Id.
162 See In re D.B., 129 Ohio St.3d at ¶7, ¶8.
163 See generally Smith v. U.S., 508 U.S. 223 (1993).
164 See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
165 See Wayte, 470 U.S. at 608.

30. standard under equal protection analysis. The prosecutor’s belief that D.B. and M.G. were not
equally deserving of punishment should be sufficient to justify the difference in treatment as it
was not made for an unconstitutional motive.
There are many reasons for law enforcement officials not being required to prosecute
every potential violator of strict liability offenses. It has been well recognized that prosecutors
enjoy broad discretion in determining the specific circumstances under which established
punitive sanctions should be invoked.166 Alleged unequal treatment, which may result from
non-arbitrary selective enforcement or laxity, has never been considered a denial of equal
protection.167
Applying the Ohio Supreme Court’s decision in D.B.168 to other criminal prosecutions is
especially inappropriate as it would lead to a rule that if some guilty persons escape prosecution,
other persons who are apprehended should not be prosecuted.169 Because of the limited
resources of law enforcement, generally the mere failure of law enforcement to prosecute or
enforce the law against all other violators is insufficient to establish a defense of selective
Page 30 of 35
166 See Herbrand supra note 55.
167 See Oyler v. Boles, 368 U.S. 448 (1962) (“State recidivist statute charged against some but not all of potential
class not, in itself, a violation of equal protection of laws absent selection deliberately based upon unjustifiable
standards such as race, religion, or other arbitrary classification”); Cameron v. Johnson, 390 U.S. 611 (1968).
168 The Ohio Supreme Court’s analysis is analogous to the Ninth Circuit’s equal protection analysis in United States
v. Arenas-Ortiz, 339 F.3d 1066, 1068-69 (9th Circ. 2003). Discussed supra note 75.
169 See Herbrand supra note 55.

31. prosecution, as to hold otherwise, would result in a complete lack of convictions should any
violator not be prosecuted for any means.170
Thus, if there is a rational reason why the prosecutors determine that one member of a
group is more culpable than another, this determination should be sufficient to pass the rational
basis test. The prosecutor’s rational belief that D.B. coerced the other parties into initiating
sexual activity is therefore sufficient under the law to justify the very low threshold of a rational
basis.
The lack of legislative guidance in a criminal statute allows the prosecution to exercise
their discretion fully to effectuate the language of the statute. D.B. alleges that a lack of a
legislative guidance to charge both parties under the statute, when they are all under the age of
consent, creates a presumption that the legislature did not intend for this result.171 However,
using this rule of construction for interpreting legislative intent would create absurd results when
applied to other statutes. Too much guidance by the legislature will leave prosecutors unable to
remain flexible enough to enforce legislation.172 Requiring the legislature to provide for every
situation under which a party may be charged would be a daunting task that would frustrate the
purpose of prosecutorial discretion and make criminal statutes too rigid for application to a
diverse array of criminal activity. Having the legislature apply limiting instructions, when
necessary, to clarify the intent the statute serves these policies. Therefore, in the absence of
Page 31 of 35
170 Id. citing Oyler v. Boles, 368 U.S. 448, 455-56 (1962) (“Failure to prosecute all offenders who violated the statute
because of a nondeliberate policy is not by itself a violation of equal protection under the Fourteenth Amendment”);
People v. Sperl, 54 Cal. App. 3d 640 (2d Dist. 1976) (“The equal protection guaranty simply prohibits prosecuting
officials from purposely and intentionally singling out individuals for disparate treatment on an invidiously
discriminatory basis”).
171 Oral Arguments for D.B., available at http://www.supremecourtofohiomedialibrary.org/Media.aspx?
fileId=128981
172 See U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).

32. language limiting the application of O.R.C. § 2907.02(A)(1)(b) where it involves two minors
under the age of consent, the prosecution is able to exercise their discretion to best effectuate the
plain meaning of O.R.C. § 2907.02(A)(1)(b) which holds those that engage in sexual conduct
with a minor are violative of the statute.
When there is guidance from the legislature, it is for specific situations, not general
ones.173 General guidance could be construed as overbroad and further could potentially
interfere with the ability of the enforcer’s ability to do their duties.
Applying the logic of the Ohio Supreme Court’s decision to other strict liability offenses
with plain meanings will yield disastrous results. As discussed previously, there has been a
circuit split in regards to what constitutes “similarly situated” in the context of strict liability
offenses.174 If applied to traffic violations, also a plain meaning strict liability offense, it would
require multitudes of additional enforcement officers to prosecute all violators vigilantly, or on
the flip side, nobody would be prosecuted for traffic violations.
While not directly alleged in this case, it is worth analyzing whether D.B.’s equal
protection rights were violated for practicing his constitutional rights. D.B. could have alleged
that engaging in sexual activity with another male consensually would violate his right to privacy
addressed in Lawrence v. Texas.175 However, Florida does not think so.176 Further, in a case
Page 32 of 35
173 See Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 212. (1989). (stating that very general guidance with
little specificity stated for enforcement is unconstitutional).
174 See supra notes 75, 77-78.
175 See Lawrence v. Texas, 539 U.S. 558 (2003). Privacy as a fundamental substantive due process right. In
Lawrence, the defendant challenged the Texas sodomy law on the grounds that it invaded on the fundamental right
of privacy. The Supreme Court agreed.
176 State v. B.B., 637 So.2d 936 (Fla. Dist. Ct. App. 1994), decision quashed, 659 So. 2d 256 (Fla. 1995). Also Jones
v. State, 640 So. 2d 1084 (Fla. 1994).

33. analogous to D.B. but before Lawrence, a minor boy and girl engaged in sexual intercourse but
only the male was charged. The court rejected the defendant’s equal protection claim.177
Thus, for all the foregoing reasons, the decision by the Supreme Court of Ohio was
incorrect and inconsistent with uncontroverted precedent. Taking the precedent of this decision
limiting prosecutorial discretion to its logical end would vastly change the way law enforcement
operates in Ohio. Further, because the decision interpreted the constitutionality of the
prosecution under both the Ohio Constitution and the United States Constitution, this decision
has ramifications in the prosecutorial discretion precedent under both the Fourteenth and Fifth
Amendment.
IV. Conclusion
The outcome of In re D.B. was correct, however the holding is against the weight of
precedent and limits the prosecutor’s discretion in strict liability offenses where there is a lack of
guidance from the legislature. The Due Process violation on its own is sufficient to dismiss the
charges against D.B.
The Ohio Supreme Court is correct in that O.R.C. § 2907.02(A)(1)(b) is
unconstitutionally applied when both parties are minors as the statute was (1) unconstitutionally
vague so as not to provide guidance to prevent arbitrary enforcement and (2) led to an absurd
result which could not have been intended by the legislature. Where minors are the only party to
the sexual activity none can be charged as under the statutes as they are considered to be
simultaneously both the violators and victims. They lack the legal ability to consent as victims
but would be presumed to have the ability to understand the risk of engaging in sexual activities
Page 33 of 35
177 Michael M. v. Superior Court, 450 U.S. 464 (1981).

34. with a minor if charged. This absurd result, even though the plain meaning was applied, cannot
be what the legislature intended.
The Ohio Supreme Court’s opinion on the Equal Protection Clause’s application to
criminal cases was inconsistent with precedent. Furthermore, applying the standard set forth by
the court could jeopardize future enforcement of strict liability offenses. The Ohio Supreme
Court, when analyzing D.B.’s claim under the Constitution, failed to consider the Wayte and
Oyler line of cases granting significant discretion to prosecutors when effectuating the plain
meaning of a criminal statute. When the facts of this case are analyzed under this line of
reasoning, the court should have held that while D.B. received disparate treatment from the
prosecutor, the prosecution’s motive was not constitutionally improper, as it didn’t involve an
arbitrary classification. Instead, the prosecution’s rationale for bringing the charges was based
on their rational belief that D.B. was culpable in this case due to his general coercion of the other
boys through his larger physical size, initiation of the conduct, and his “bribing” of the other
child.
To prevent another situation such as this, the legislature should provide guidance to
prosecutors stating that if both parties are in an O.R.C. § 2907.02(A)(1)(b) situation, neither
party should be charged. This minor guidance and minimal invasion of prosecutorial discretion
will allow the prosecutors to remain flexible and will prevent this ‘absurd result’ from happening
again. Also, this guidance will better help the prosecution effectuate the clear legislative intent.
The Ohio Supreme Court should be wary of how they affect the discretion of a prosecutor
because of the unique nature of every case, every budget, every exigent circumstance, and every
level of culpability. The prosecutorial system we have is not perfect and there will be abuses, but
Page 34 of 35

35. they should not be at the expense of society and justice. The presumption that prosecutors
execute their duties is a rebuttable presumption and rightfully so. A change of their procedures
should only come when there is a clear abuse of their power. The current standard under Wayte
is sufficient in preventing those atrocities. In re D.B. does not rise to dismissal under that
standard.
Page 35 of 35