Explicit Sexual Proposition to 16-Year-Old Can Be a Crime, Even if Sex with the 16-Year-Old Isn't

From yesterday's decision in Ohio v. Sebring, decided by the Ohio Court of Appeals, in an opinion by Judge Jill Flagg Lanzinger, joined by Judge Jennifer Hensal (and with Judge Donna Carr concurring in the judgment):

Mr. Sebring was friends with the parents of C.S., a 16-year-old girl. C.S. had a sixteenth birthday party at her house. Several of C.S.'s friends, including Q.H. and E.B., attended the birthday party. Mr. Sebring, who was 34 years old at the time, also attended the birthday party.

According to E.B., the teenagers at the party (all of whom were in high school) swam, ate, and then went to the basement to watch a movie. The adults stayed upstairs, but Mr. Sebring went to the basement with the teenagers. E.B. testified that there were three couches in the basement, and that she was sitting on one of them while Mr. Sebring was sitting on another couch. Mr. Sebring asked E.B. to come sit next to him, but she declined. Mr. Sebring then "squeezed" himself between E.B. and another person on the same couch. Mr. Sebring rested his hand on E.B.'s knee and started playing with her hoodie. E.B. testified that Mr. Sebring gave her an alcoholic beverage, which E.B. explained contained Tito's and orange juice. E.B. testified that she was familiar with the taste of alcohol, and that she saw Mr. Sebring pour Tito's into the drink. When questioned by the trial court, E.B. clarified that Tito's is a brand of vodka.

E.B. testified that Mr. Sebring asked to drive her home at least twice, but she declined. Mr. Sebring then had E.B. add him to Snap Chat, a messaging app. E.B. left the party and Q.H. drove her home. Mr. Sebring then started messaging E.B. through Snap Chat. In one of the messages, Mr. Sebring asked E.B. to return to the party, indicating that he "misse[d] his drinking buddy." E.B. did not immediately respond to Mr. Sebring's messages. Mr. Sebring then messaged E.B.: "Tell your mom that you want to spend the night here and let me eat that Pussy * * *." E.B. took a picture of the message, which the State introduced as an exhibit at trial. E.B. testified that Mr. Sebring apologized to her the next day for sending inappropriate messages, and that she blocked him on Snap Chat. On cross-examination, E.B. testified that the content of that message was not the type of thing that she discussed with her adult friends.

Q.H. testified that C.S. is her best friend, and that they live across the street from each other. Q.H. testified that she met Mr. Sebring through C.S.'s family, and that she had known him for about a year and a half at the time of C.S.'s sixteenth birthday party. Q.H. testified that she drove E.B. home from the party and then returned to her house. When she returned home, Q.H. realized that she had left a bag at C.S.'s house. Q.H. then walked across the street to C.S.'s house and retrieved her bag. When she went inside, Mr. Sebring was sitting with C.S.'s parents in the kitchen, but Mr. Sebring did not say anything to her. Once she left C.S.'s house, Mr. Sebring started messaging Q.H. through Snap Chat, initially teasing her about another boy. Q.H. responded "LOL" because she wanted to end the conversation. Mr. Sebring then started sending her "inappropriate and * * * sexual" messages through Snap Chat, indicating that he knew where the spare bedroom was at C.S.'s house and insinuating that he wanted to have sex with Q.H. Mr. Sebring then messaged Q.H. about "[d]estroying [her] pussy[.]" Q.H. testified that Mr. Sebring's messages made her uncomfortable….

Sebring was prosecuted and convicted under Ohio Rev. Code 2907.31: "No person, with knowledge of its character or content, shall recklessly do any of the following … [d]irectly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile … any material or performance that is … harmful to juveniles," with "[h]armful to juveniles" defined as:

that quality of any material or performance describing or representing nudity, sexual conduct, sexual excitement, or sado-masochistic abuse in any form to which all of the following apply:

(1) The material or performance, when considered as a whole, appeals to the prurient interest of juveniles in sex.

(2) The material or performance is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for juveniles.

(3) The material or performance, when considered as a whole, lacks serious literary, artistic, political, and scientific value for juveniles.

Constitutionally permissible, the court held:

A "prurient interest" is a "shameful or morbid interest in nudity, sex, or excretion * * * [which] goes substantially beyond customary limits of candor in description or representation of such matters * * *." "Whether a work appeals to the prurient interest or depicts sexual conduct in a patently offensive way is governed by contemporary community standards." "To be patently offensive, the work must depict or describe 'hard core' sexual conduct." "This requirement is satisfied if the material depicts or describes activity [that] meets the definition of 'sexual conduct'" under R.C. 2907.01(A), which includes cunnilingus.

In his merit brief, Mr. Sebring argues that there is no compelling state interest served by prohibiting 16-year-olds, who are of the age of consent [in Ohio], from receiving messages that insinuate sex or oral sex. He argues that "[p]resumably, teenagers in these ages had sex education and addressing female genitalia in a vulgar matter is not new, shocking, or corrupt in their minds." Mr. Sebring's general assertion that "teenagers in these ages" would not find the messages in this case to be new, shocking, or corrupt falls short of establishing clear and convincing evidence that R.C. 2907.31 is unconstitutional as applied to the facts in this case.

Under the plain language of the statute, the "prevailing standards in the adult community as a whole with respect to what is suitable for juveniles" is the standard, not whether the juveniles themselves found the messages "new, shocking, or corrupt" like Mr. Sebring suggests. Additionally, whether the messages appealed to the prurient interest of the juveniles is governed by contemporary community standards. Mr. Sebring has not explained, much less argued, how those standards are unconstitutional as applied to the facts of this case.

Additionally, Mr. Sebring's argument is based upon the flawed premise that the statute wholly criminalizes discussing sexual conduct with a person of the age of consent. It does not. Instead, the statute criminalizes disseminating material that is "harmful to juveniles" as that phrase is statutorily defined….

Mr. Sebring argues that the State failed to prove that the messages appealed to the "prurient interest" of the victims. Mr. Sebring's argument in this regard is premised upon the fact that the victims were of the age of consent. Aside from being minors, the age of the victims is not relevant for purposes of determining whether the messages appealed to the "prurient interest" of the victims. As noted, "[w]hether a work appeals to the prurient interest or depicts sexual conduct in a patently offensive way is governed by contemporary community standards." …

Sebring seems like someone one wouldn't want to be friends with one's daughter, and it sounds like C.S. was upset by his propositions. But the Ohio statute isn't aimed at prohibiting material that offends the recipient. Indeed, the quintessential example of distributing "harmful to minors" material involves distributing pornography to minors who are quite happy to consume it, but who the law thinks shouldn't be able to easily access it. Under the government's theory, which the court accepted, similar sex talk that is eagerly welcomed would equally be criminally punishable, including if it's said to a 16-year-old with whom the speaker is already in a sexual relationship (again, a perfectly legal one, since the age of consent in Ohio is 16). That's true if the speaker is 34, or 18, or likewise 16.

This seems hard to justify, in my view. If it's OK to have sex with a consenting 16-year-old, the law shouldn't ban explicit talk about sex with the consenting 16-year-old. (Again, if the state wants to have some law limited explicit sexual approaches that are likely to be offensive to a person, that would raise a different question; but this law isn't so limited.)

Brianna Dietry represents the state.