IN RE FREDERICK

KENNETH A. ROCCO, Judge.

I. INTRODUCTION

On December 5, 1992, Frederick, who had just turned fourteen on November 27, 1992, and Angela, who was twelve years and five months old, engaged in consensual sexual intercourse. The state has charged Frederick with "rape," pursuant to R.C. 2907.02(A)(1)(b), which makes it a felony of the first degree to engage in sexual conduct with a person less than thirteen years old. According to the Committee Comment to Am. Sub. H.B. No. 511 (134 Ohio Laws, Part II, 1866), which enacted the most recent changes to the provisions governing sex offenses, the presumably older participant in the consensual sexual conduct is to be punished as a felon of the first degree because "the 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 parties submitted this matter to the court for decision on a written stipulation of the evidence.

II. DISCUSSION

This court is unable to find another instance of R.C. 2907.02(A)(1)(b) being applied in a similar context. In 1987, a fifteen-year-old boy was accused of "raping" an eleven-year-old girl after the two engaged in consensual sex. The Franklin County Court of Appeals affirmed the child's adjudication of delinquency. In re Hamrick (Sept. 29, 1988), Franklin App. No. 87AP-1154, unreported, 1988 WL 101996. The appellate court noted that the General Assembly had established the age of consent at thirteen, stating that "[t]he purpose of the statute is to protect the young and physically immature victim from sexual advances." The four-year age difference between the two parties in In re Hamrick makes Hamrick distinguishable from the present case. Frederick and Angela are close enough in age so as to be expected to have the same peer group, and to relate to each other as equals.

The Committee Comment to Am. Sub. H.B. No. 511 states that the rape provision was expanded in 1975 to broaden the definition of "sexual conduct," and to eliminate the requirement that the actor be male. It is clear from the Committee Comment that the expanded provision was to continue to recognize the traditional concept of rape as a "violent crime against the person which carries a significant risk of harm to its victim outside the fear of impregnation." In re Wilson (Dec. 1, 1988), Montgomery App. No. 10909, unreported, 1988 WL 129176. While this court certainly deplores the fact that conduct of this nature occurs between such young children, it is inimical to the purposes of both the General Assembly and this court to find Frederick, when he and Angela engaged in consensual sex, delinquent on a charge of felony one rape.

While there is a legal definition of "rape" into which Frederick's conduct might technically fit, there is also in our society a common understanding of "rape," from which our current laws have evolved. This court does not believe that the only form of rape deserving of punishment is that which occurs at gunpoint in a dark alley. However, to label Frederick a rapist, a perpetrator of the most heinous of all crimes save murder, is to sacrifice him to the oversight of our legislature, which this court refuses to do. Frederick and Angela engaged in consensual sex at a location secured for that purpose by Angela. See Stipulation No. 9. They were both willing participants in their sexual experimentation, and to find Frederick culpable of the felony one rape of Angela belittles the legitimate suffering of other rape victims.

A. In enacting R.C. 2907.02(A)(1)(b), the General Assembly assumed it would be protecting prepubescent children from the vicious sexual advances of significantly older offenders. The state has correctly asserted that R.C. 2907.02(A)(1)(b) imposes strict liability for the offense that Frederick seems to have committed, as the statute explicitly says "whether or not the offender knows the age of such person." The Committee Comment notes that the General Assembly's purpose in enacting R.C. 2907.02(A)(1)(b) was to protect a prepubescent child from the sexual advances of another, presumably older person, because "engaging in sexual conduct with such a person indicates vicious behavior on the part of the offender." The General Assembly's intention to create a strict liability offense is based on its conclusion that the lack of physical development of a child under thirteen is not easily mistaken, and therefore an offender should not be able to claim a defense of consent or lack of knowledge when the victim is under that age. The General Assembly's conclusion seems to assume that the other party to the consensual sexual conduct is old enough to recognize the physical and psychological immaturity of a person under thirteen.

The average age of puberty for females is eleven to eleven and a half years, and as young as nine years is considered within the range of normal. The average age of puberty for males is twelve and a half to thirteen years.

B. Application of R.C. 2907(A)(1)(b) to this case as written would produce an unjust and absurd result.

Facially, the statute seems to indicate that it was intended to apply to all situations in which any person engages in sexual conduct with a person under the age of thirteen. This court, however, does not believe that the General Assembly intended this statute to apply in situations such as the one in this case. It is contrary to this court's basic understanding of the offense of rape to extend the definition of the offense to situations where two children so close in age engage in consensual intercourse. Even the Committee Comment does not seem to envision that the statute be applied as the state asserts in the case, as neither child is necessarily acting "viciously" towards the other.

C. R.C. 2907.02(A)(1)(b) must be interpreted by this court to serve the purpose for which it was intended by the General Assembly.

The paramount concern in interpretation of a statute is to ascertain and give effect to the legislature's intent in enacting that statute. State v. S.R. (1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319, 1322; Featzka v. Millcraft Paper Co. (1980), 62 Ohio St.2d 245, 247, 16 O.O.3d 280, 281-282, 405 N.E.2d 264, 266. This court is mindful of the rule that if "the statute conveys a meaning which is clear, unequivocal, and definite, at that point the interpretative effort is at an end, and the statute must be applied accordingly," Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 218, 574 N.E.2d 457, 461. Nevertheless, in view of the inconsistencies between the General Assembly's intent, as evidenced by the Committee Comment, and the application of the statute to this case, this court is required to interpret R.C. 2907.02(A)(1)(b) in light of the evils the General Assembly intended to punish by its enactment. The year and a half age difference between Frederick and Angela is not enough to support the statute's presumption that Frederick is the type of vicious offender whose conduct is condemned under R.C. 2907.02(A)(1)(b), and his adjudication as delinquent based on a charge of rape, a felony of the first degree, would not only be unjust, but also absurd.

D. R.C. 2907.02(A)(1)(b) should be reconciled in its application with R.C. 2907.04.

Finally, given the discrepancies between the aims of R.C. 2907.02(A)(1)(b) and its apparent results, this court finds it necessary to examine other provisions of the Revised Code which were enacted to serve a similar purpose. As they both seek to protect minors from corrupt sexual advances, R.C. 2907.02(A)(1)(b) and R.C. 2907.04 should be read in pari materia, and should be "reconciled and harmonized if reasonably possible." State v. Carter (1985), 23 Ohio App.3d 27, 31, 491 N.E.2d 709, 713. In R.C. 2907.04, which prohibits corruption of a minor a crime, the General Assembly recognized that the age difference between participants in consensual sex should have an effect on the degree of the offense. A similar approach in the application of R.C. 2907.02(A)(1)(b) would obviously be appropriate. For example, under R.C. 2907.04, if a twenty-five-year-old person engaged in consensual sex with a thirteen year old, that person could be convicted of a third degree felony. If an eighteen year old had consensual sex with fifteen year old, the eighteen year old could be convicted of a first degree misdemeanor. Additionally, the Committee Comment to R.C. 2907.04 states: "When both partners are juveniles, there is no offense under the section, although the actors would be liable to being adjudged unruly children in a juvenile proceeding." Therefore, if a seventeen year old and a thirteen year old engaged in consensual sex, both could be adjudicated unruly. All of these results are perfectly appropriate, given the goal of protecting psychologically and physically immature minors from the possibly corrupt advances of older persons. However, in its zeal to protect the pre-puberty victim, the legislature failed to create similar variations of degree based on age differences in its enactment of other sex offense provisions. This case demonstrates the unjust and absurd results possible under R.C. 2907.02(A)(1)(b). Pursuant to R.C. 2907.02(A)(1)(b), if both the "victim" and the "offender" are under thirteen, are they both to be charged with the felony one rape of the other? If the "offender" has just turned thirteen and the "victim" is twelve when they engage in consensual sex, is it a just and reasonable result to adjudicate the "offender" as a rapist? This court does not believe that it is.

As proof of the legislature's blatant oversights in drafting these provisions, it is worth pointing out that this last scenario is technically impossible under R.C. 2907.04, because the statute applies only to people who are over eighteen, who are by definition no longer juveniles.

III. CONCLUSION

Even though this court is bound by certain rules of statutory interpretation and construction, statutes should not be construed to produce unreasonable or absurd results. State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 18 OBR 437, 481 N.E.2d 632. "If the construction and interpretation of statutory language reveals the statute to be facially ambiguous, it is the function of the courts to construe the statutory language to effect a just and reasonable result." Gulf Oil Corp. v. Kosydar (1975), 44 Ohio St.2d 208, 73 O.O.2d 507, 339 N.E.2d 820, paragraph two of the syllabus. A strong presumption exists against any construction that would produce unreasonable or absurd consequences. R.C. 1.47(C). This court believes that the minimal age difference between Frederick and Angela, as well as the facts surrounding their liaison, make this case essentially the same as if they had both been the same age.

This court has the authority to dismiss any charge which to pursue would be contrary to the child's best interest. Juv.R. 9 provides: "In all appropriate cases formal court action should be avoided and other community resources utilized to ameliorate situations brought to the attention of the court." This court also has the authority to amend any charge in the interest of justice. Accordingly, pursuant to Juv.R. 22, the complaint herein is amended to allege unruly conduct on the part of Frederick. It is worth noting that, because she engaged in essentially the same conduct as Frederick, Angela also could have been charged as an unruly child.

IV. ORDER

1. The complaint is amended pursuant to Juv.R. 22 to allege unruly conduct.

2. The matter is continued for adjudication and disposition pursuant to Juv.R. 29(F)(2)(c).

3. The menacing charge is dismissed for a lack of evidence.

So ordered.