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POLICE CAN'T BE PENALIZED MORE THAN PUBLIC FOR CRIMES INVOLVING SEX WITH MINORS

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

Posted on Jul 28, 2016

The Ohio Supreme Court today declared unconstitutional a state law making it felony for a law enforcement officer to have sex with a minor more than two years younger than the officer.

The 5-2 ruling in a Cuyahoga County case said a 2007 state law "clearly and unequivocally" violated the equal protection clause of the Ohio Constitution by unfairly imposing a higher standard on law enforcement than the general public.

"Peace officers must accept certain burdens as part of their employment in order to maintain the honor and privilege of being peace officers and to foster public trust," Chief Justice Maureen O'Connor said in the majority decision. "They do not lose all of their rights as ordinary citizens, including their constitutional right to be treated equally under the criminal law, simply because they have chosen the profession of peace officer."

While state law already made it illegal to have sex with a minor, a 2007 law added law enforcement officers to teachers, coaches, psychologists, clergy and scout trooper leaders for whom sexual battery with a minor is a third-degree felony.

The case involved Matthew T. Mole, a former police officer in Waite Hill, a Cleveland suburb. Mole met a boy who claimed he was 18 years old on a social network gay website, according to court records. Mole went to the boy's home and had what he said was consensual oral sex with the boy, who was actually 14. The boy's mother called police and Mole was arrested on Dec. 19, 2011.

Mole, who was 35 at the time of the incident, was convicted in 2012 for having sex with a minor more than two years younger than him. He received a two-year prison sentence.

However, in July 2013, Mole's conviction was reversed by an appeals court and he was released from prison. The Cuyahoga County prosecutor and Attorney General Mike DeWine appealed to the Ohio Supreme Court.

O'Connor said in her opinion that the Supreme Court, as the "ultimate arbiter of the meaning of the Ohio Constitution, can and will interpret our Constitution to afford greater rights to our citizens when we believe that such an interpretation is both prudent and not inconsistent with the intent of the framers."

She wrote that the government has an interest in protecting juveniles from sexual assault, but that "does not justify differential treatment under the criminal law of peace officers acting as private citizens when there is no connection between the criminalized conduct and the office, duties, or other aspects of the occupation of a peace officer."

Justice Sharon L. Kennedy dissented, arguing that the majority "stretched the precedent to the breaking point" in making the decision on a equal protection basis. Justice Terrence O'Donnell sided with Kennedy .

The case is online here

 

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