Court rejects prosecution for “ask[ing] a child to carry some boxes to his apartment in exchange for money”

Ohio Revised Code 2905.05(A) provides,

No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:

(1) The actor does not have express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.

(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor’s lawful duties in that capacity.

(A separate subsection, not implicated here, lets plaintiff raise as an affirmative defense “that the actor undertook the activity in response to a bona fide emergency situation or that the actor undertook the activity in a reasonable belief that it was necessary to preserve the health, safety, or welfare of the child.”)

Jason Romage was prosecuted under this statute, based on a police officer complaint alleging that

[Romage] had asked a child to carry some boxes to his apartment in exchange for money.

According to the court, the complaint made no allegations of any intent on Romage’s part to do anything else with the child. Romage pled not guilty and filed a motion to dismiss, arguing that the statute was unconstitutionally overbroad. The trial court and the court of appeals agreed with Romage, and in yesterday’s decision in State v. Romage (Ohio Mar. 6, 2014), the Ohio Supreme Court agreed with Romage, too (paragraph breaks altered):

Undoubtedly, R.C. 2905.05(A) has an admirable purpose, which is “to prevent child abductions or the commission of lewd acts with children.” … But a statute that defines criminal conduct should not include what is constitutionally protected activity.

Even though the state has a legitimate and compelling interest in protecting children from abduction and lewd acts, a statute intended to promote legitimate goals that can be regularly and improperly applied to prohibit protected expression and activity is unconstitutionally overbroad. R.C. 2905.05(A) is such a statute…. The statute fails to require that the prohibited solicitation, coaxing, enticing, or luring occur with the intent to commit any unlawful act….

With respect to those who are not specifically exempted …, the statute prohibits anyone from asking any child to accompany the person in any manner and for any reason. The statute’s broad language can support criminal charges against a person in many innocent scenarios.

Under the statute, each of the following scenarios could result in a criminal charge: a primary-school coach offering to drive a team member home to retrieve a forgotten piece of practice equipment; a parent at a community facility offering to drive another’s child home so she does not have to walk; a senior citizen offering a 13–year–old neighborhood child money to help with household chores; a 14–year–old asking his 12–year–old friend to go for a bike ride….

The state argues that R.C. 2905.05(A) is not overbroad, because the term “solicit” should be narrowly construed since the other verbs used — “entice,” “coax,” “lure” — all imply the use of artifice, deceit, and/or promises to induce compliance. The state asserts that in the context of R.C. 2905.05(A), the meaning of “solicit” should be narrowed by employing the canon of construction … [counseling] that a word is given a more precise meaning by the neighboring words with which it is associated….

[But e]ven if we were to employ a more narrow definition of “solicit,” R.C. 2905.05(A) would still criminalize a substantial amount of activity protected by the First Amendment. The statute forbids anyone other than the legal custodian of a child, those listed in R.C. 2905.05(A)(2), or those who have the legal custodian’s express permission to solicit a child under the age of 14 to accompany the person “in any manner” for any purpose.

The motivation for the solicitation is irrelevant. There is no requirement that the offender be aggressive toward the victim. One need not have intent to commit a crime. Short of rewriting R.C. 2905.05(A), which is the province of the legislature rather than the court, we cannot construe the statute in such a way as to find it constitutional….

As an alternative to narrowly construing the word “solicit,” the state argues that the court could sever the word from the statute and thereby save the statute from being overbroad…. [But e]ven if the word “solicit” were severed, the remaining language — that no person may “coax, entice, or lure any child … in any manner” — still encompasses a wide range of innocent and protected conduct. An elderly person offering a child under 14 years old money to come with her to help with chores is more than merely asking, and this activity would arguably constitute coaxing, enticing, or luring….

Justice French, joined by Justice O’Connor, dissented:

… To strike down R.C. 2905.05(A) as facially overbroad in violation of the First Amendment, the majority had to find that the statute punishes “a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep.’” In other words, the act of attempting to obtain the unauthorized accompaniment of another’s young child must fall under a “recognized First Amendment protection[].” The majority is silent as to why the speech subject to R.C. 2905.05(A) qualifies as protected expression, much less how the statute punishes a substantial amount of protected expression.

But even if I were to accept the majority’s premise that there is a First Amendment right to attempt to obtain the unauthorized accompaniment of another’s young child for “innocent” purposes, this court can avoid a finding of overbreadth by applying a narrower interpretation of “solicit.” The majority reads “solicit” out of context and uses the broadest definition it can find — “merely asking” … [But w]hen reading the word “solicit” with its neighboring operative verbs — “coax, entice, or lure” — one can reasonably find a more sinister connotation. Solicit can mean to “lead astray” or “lure on and esp. into evil.” (Emphasis added.) Webster’s Third New International Dictionary 2169 (1986). Applying this narrower construction, I cannot conclude that R.C. 2905.05(A) criminalizes a substantial amount of activity protected by the First Amendment….

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
Comments
Show Comments
Most Read National
Next Story
Will Baude · March 7