The Ohio Supreme Court has held that Ohio’s child-enticement statute is unconstitutionally overbroad because it sweeps within its prohibitions a significant amount of constitutionally protected activity.
The case is State v. Romage, Slip Opinion No. 2014-Ohio-783.
The Defendant in this case was charged with criminal child enticement after he asked a child to carry some boxes to his apartment in exchange for money.
The Statute, R.C. 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 the 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 law can be found to be unconstitutional if it is so broadly written that it may have a deterrent effect on free expression. The United States Supreme Court has held that for a statute to be facially invalid on overbreadth grounds, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Members of Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).
The Ohio Supreme Court observed that the purpose of the child enticement statute is to prevent child abductions or the commission of sexual acts with children. However, this admirable goal was not sufficient to save the statute. The court wrote:
Certainly, the safety and general welfare of children is even more deserving of governmental protection. 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. Although the statute uses the word “knowingly,” the word modifies “solicit.” The statute fails to require that the prohibited solicitation, coaxing, enticing, or luring occur with the intent to commit any unlawful act.
The court noted that many innocent acts would seem to fall under the language of the statute, including, “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.”
In summary, the court held that the statute was unconstitutional because “There is no requirement that the offender be aggressive toward the victim. One need not have intent to commit a crime.”
Justice French, dissenting, suggested that the word “solicit” in the statute could be read narrowly “with its neighboring operative verbs—‘coax, entice, or lure’” so that “one can reasonably find a more sinister connotation.”