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Is drunken sex rape?

By Michael Harrington • Jun 16, 2019 at 12:00 PM

Ohio’s highest court has agreed to hear a Port Clinton case that could change how sexual assaults are tried when both victim and offender were intoxicated.

In 2016, Ottawa County’s juvenile court determined the man, who was a minor at the time, to be an adjudicated delinquent to rape for the sexual assault of his friend who was too impaired at the time to consent.

The Ohio Supreme Court agreed on Wednesday to hear his case based on the argument both teenagers were intoxicated at the time.

“The danger inheres in the fact that where two people are mutually and voluntarily impaired, and later engage in sexual conduct, the statute contains no standard whatsoever to determine who is the victim and who is the offender,” wrote Timothy Hackett, the assistant state public defender representing the man, in court filings.


In April 2016, the man — who was a 16-year-old boy at the time — went to a friend’s house after school to smoke marijuana and drink with other teenagers, including his friend, a 17-year-old girl.

The boy walked her home because she was so intoxicated she needed help walking. When she woke up the next morning and he was still there, she realized they had sexual intercourse, but she remembered telling him no, court documents state.

After talking to family members and feeling pain from the encounter, she reported the sexual assault to Port Clinton police. In November, the juvenile court found the boy’s conduct would be considered rape if he was an adult.

But the court suspended his sentence to the Ohio Department of Youth Services. In 2017, however, his sentence was reinstated after he failed to undergo the required treatment. His case was reaffirmed by the 6th District Court of Appeals in 2018.

He then appealed to the Ohio Supreme Court, which initially denied it, but Hackett filed a motion to reconsider. He argued the current law is vague and leaves it to prosecutors and police to decide who is the offender is when both are impaired.

“Virtually anybody who engages in mutually-drunken sexual conduct is simply left to the mercy of an allegation … This is thus not merely a request for further factual review,” Hackett wrote in the motion. “It presents substantial constitutional questions implicating the limits of government power the public’s confidence in the criminal justice system.”

The Ottawa County Prosecutor’s Office filed a document opposing the motion to reconsider arguing the law isn’t vague and there are clear guidelines to differentiate victim from offender.

The court filing also disputes claims that the two teenagers were similarly intoxicated. The filing claims evidence showed the girl could barely walk or talk while the boy didn’t show any signs of intoxication.

“The set of facts in this case would be a horrible foundation on which to proclaim a holding that there can be no rape if two teenagers engage in sexual conduct while similarly intoxicated because the two teens, in this case, were not similarly intoxicated,” Ottawa County prosecutor James VanEerten wrote in the filing.

The Ohio Supreme Court, however, reconsidered its previous denial and agreed to take on jurisdiction for the case on Wednesday.

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