Joining the Second, Eighth, and Tenth Districts, the Ninth District Court of Appeals has ruled in State v. Goode, 9th Dist., 2013 Ohio 556, that Ohio’s “Criminal Child Enticement” statute is unconstitutional. 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.
John Goode was charged with one count of Criminal Child Enticement after asking a 13 year-old girl outside of a library if the two could become “secret” Facebook friends. Goode filed a motion to dismiss the charge, arguing that it was unconstitutionally broad. The trial court denied the motion, and Goode was convicted. The Ninth District reversed.
A party challenging a criminal statute on the basis that it is overbroad must show that its potential application reaches a significant amount of protected activity. Even then, however, courts may uphold a broad statute if they “also have a legitimate application.”
Goode argued that the law criminalized speech and behavior that is protected by the First Amendment. Citing a Second District opinion, the Court agreed, noting that “[t]he common, ordinary meaning of the word 'solicit' encompasses 'merely asking.'"
For example, parents picking up their child from school would theoretically violate R.C. 2905.05(A) merely by asking their child's friend if he or she wanted a ride home. Because there is no requirement that a person have ill-intent when asking the child to accompany him or her, R.C. 2905.05(A) prohibits a wide variety of speech and association far beyond the statute's purpose of safeguarding children. Other states with similar statutes at least require illicit intent.
The Court also held that the 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” was not enough to save the law from being overbroad.
One supposes that, in the scenario where a parent picking up his or her child offers another child a ride home, the parent could argue that the offer was made to preserve the health, safety, or welfare of the child rather than leaving him or her unsupervised. However, even if the affirmative defense would arguably protect Good Samaritan parents, it still would not protect a child asking another child to go to an after-school event or on a bike ride. 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.
The State argued that the law as written was constitutional, because "a police officer can distinguish between innocent behavior and criminal behavior under the statute." The Court was not persuaded by the State’s urging to “ignore the breadth of the statute because it can be selectively enforced.”
The holding in Goode is in accord with other recent appellate holdings on the constitutionality of the Child Enticement statute, but conflicts with a 1989 First District decision which upheld the law. State v. Long, 49 Ohio App. 3d 1, 550 N.E.2d 522. The issue may reach the Ohio Supreme Court, which would be wise to side with the Goode Court and strike this vague law down once and for all. On the other hand, it shouldn’t be difficult for the General Assembly to salvage the law by amending it to include an intent element.
See also: State v. Chapple, 175 Ohio App.3d 658, 2008 Ohio 1157, 888 N.E.2d 1121 (2d Dist.), which held R.C. 2905.05(A) to be "substantially overbroad and unconstitutional on its face."; State v. Romage, 10th Dist. No. 11AP-822, 2012 Ohio 3381, ¶ 10, 974 N.E.2d 120 [**4] (adopting the reasoning of Chapple and concluding that R.C. 2905.05(A) is unconstitutional); Cleveland v. Cieslak, 8th Dist. No. 92017, 2009 Ohio 4035, ¶ 12-16 (concluding in reliance on Chapple that a municipal ordinance that closely mirrored R.C. 2905.05(A) was unconstitutional).