Updated Fri, Feb 22, 2013 2:12 pm
The Ninth District Court of Appeals has found a state law prohibiting criminal child enticement unconstitutionally overbroad because it “prohibits a broad range of speech and conduct far beyond its intention to protect children from abductors.”
John D. Goode was found guilty of child enticement under Ohio Revised Code section 2905.05 in Akron Municipal Court and sentenced to a suspended 180 days in jail.
He challenged the constitutionality of the law and filed a motion for acquittal, which the trial court denied.
Goode appealed his case.
Judge Eve V. Belfance wrote the appeals court’s unanimous decision and cited a Third District Court of Appeals case (State v. Chapple) that also found the statute unconstitutionally overbroad.
“Undoubtedly, R.C. 2905.05(A) has an admirable purpose, which is ‘to prevent child abductions or the commission of lewd acts with children,’” Judge Belfance wrote, quoting from Chapple. “However, as the court in Chapple noted, ‘[t]he common, ordinary meaning of the word ‘solicit’ encompasses ‘merely asking.’ R.C. 2905.05(A) fails to require that the prohibited solicitation occur with the intent to commit any unlawful act.”
She cited examples of parents giving a friend of their child a ride home from school or one child asking another to go on a bike ride as activities that would not be protected under the statute.
“These are very basic societal interactions going to the very idea of speech and association. By prohibiting these, the statute necessarily infringes on protected speech and conduct.”
Judge Belfance differentiated Ohio’s statute with those of other states that require illicit intent.
She also dismissed an argument by the State that Ohio’s statute is not problematic because police could distinguish between harmless and harmful behavior.
“In other words, the State urges us to ignore the breadth of the statute because it can be selectively enforced,” she wrote. “Even if the statute did grant the police the discretion to determine what was illegal and what was legal, similar grants of discretion to police officers have consistently been found to be unconstitutional.”
Judges Carla D. Moore and Donna J. Carr concurred in the February 20 opinion that reversed the judgment of the trial court and remanded it for the court to enter a judgment of acquittal.