Justice O'Connor on Criminal Justice
From Judgepedia
2008
- In a 4-3 decision, Justice O'Connor concurred in the majority opinion, written by Justice Moyer, which concluded, over the vigorous dissents of Justices O'Donnell, Lanzinger, and Lundberg Stratton, that the prosecution's failure to allege in the indictment that the defendant had the specific mental state necessary to be convicted for robbery was a "structural error," i.e. an error that deprived the defendant of one of his constitutional rights. Thus any conviction of the defendant could not stand, even though the defendant failed to object to the error prior to trial. The majority noted that "if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment * * * such a procedure would allow a court to convict him on an indictment essentially different from that found by the grand jury," and that "the state must meet its duty to properly indict a defendant, and we will not excuse the state's error at the cost of a defendant's longstanding constitutional right to a property indictment." Thus, that "a defendant can challenge for the first time on appeal an indictment that omits an essential element of the crime, protects defendants' right to a grand jury indictment," because "the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by a presentment or indictment of a Grand Jury."
- In his dissent, Justice O'Donnell acknowledged that the error was unconstitutional, but asserted that the defendant forfeited the right to object to any such error when he "failed to object at a time when it could have been corrected by the trial court." He noted that "to hold that an error is structural even when the defendant does not bring the error to the attention of the trial court would be to encourage defendants to remain silent at trial only later to raise the error on appeal where the conviction would be automatically reversed."
- In her separate dissent, Justice Lanzinger noted her beliefs that "failure to timely object to a defect in an indictment constitutes a waiver of the issues involved," and that the defendant "has not shown that he was prejudiced in the defense of his case or that he would have proceeded differently had the error been corrected."
Judge William H. Wolff sat on the court in place of Justice Cupp.
2007
Justice O'Connor concurred in the majority opinion, written by Justice Lanzinger over the strident and lengthy dissent of Justice Pfeifer which interpreted the Ohio statute on incest, and specifically the word "stepchild," in such a manner that resulted in the conviction, imprisonment, and designation as a sexually-oriented offender of a man who had sexual relations with a 22-year-old adult who was his legal stepdaughter. Further, the Court distinguished this case from the U.S. Supreme Court's finding, in Lawrence v. Texas, that a statutory prohibition on homosexual sodomy was unconstitutional. In reaching these conclusions, the Majority offered the following rationales:
- "The plain language of [the statute] clearly prohibits sexual conduct with one's stepchild while the stepparent-stepchild relationship exists. It makes no exception for consent of the stepchild or the stepchild's age."
- "[A]lthough the statute does indeed protect minor children from adults with authority over them, it also protects the family unit more broadly."
- Although the defendant claimed that the statute was unconstitutional as applied to consensual sexual conduct between adults related only by affinity, the Majority held that "Lowe's claimed liberty interest in sexual activity with his stepdaughter is not a fundamental right * * *."
- "Using the rational-basis test, we conclude that, as applied in this case, Ohio's statute serves the legitimate state interest of protecting the family unit and family relationships."
- "Ohio has a tradition of acknowledging the “importance of maintaining the family unit. * * * A sexual relationship between a parent and child or a stepparent and stepchild is especially destructive to the family unit. R.C. 2907.03(A)(5) was designed to protect the family unit by criminalizing incest in Ohio. Stepchildren and adopted children have been included as possible victims of the crime of incest because society is concerned with the integrity of the family, including step and adoptive relationships as well as blood relationships, and sexual activity is equally disruptive, whatever the makeup of the family."
- "'As the “traditional family unit has become less and less traditional, * * * the legislature wisely recognized that the parental role can be assumed by persons other than biological parents, and that sexual conduct by someone assuming that role can be just as damaging to a child.' * * * This reasoning applies not only to minor children, but to adult children as well. Moreover, parents do not cease being parents-whether natural parents, stepparents, or adoptive parents-when their minor child reaches the age of majority."
- "Accordingly, as applied in this case, R.C. 2907.03(A)(5) bears a rational relationship to the legitimate state interest in protecting the family, because it reasonably advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren. If Lowe divorced his wife and no longer was a stepparent to his wife's daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case."
In his dissent, Justice Pfeifer took great exception to the Majority opinion, noting that the legislature's sole intention in passing the incest statute was to protect children, and the facts of this case rendered it as having nothing to do with the "protection of families:"
- Justice Pfeifer cited the statement of the Legislative Service Commission, who drafted the statute, that "The principel on which the first group of offenses is founded is that sexual activity of whatever kind between consenting adults in private ought not to be a crime * * *."
- "The majority reads R.C. 2907.03 as making certain private, consensual sexual relations between two adults illegal. R.C. 2907.03(A)(5) and its legislative history indicate that that statute is designed to protect children, not to criminalize sexual activity between consenting adults."
- "Imbued in R.C. 2907.03(A)(5) is the notion of parental, or quasi-parental, responsibility and control over the victim."
- "The Summary of Am. Sub. H.B. 511, supra, at 14, indicates that it is children and those who are unable to care for themselves that are being protected by the statute. * * * Contrary to the majority's reading of the Legislative Service Commission's Comments to the statute, R.C. 2907.03(A)(5) does not 'protect [ ] the family unit more broadly;' instead, it protects children against a broader class of persons who can exert a parental role." * * * “[S]imply put, [R.C. 2907.03(A)(5)] applies to the people the child goes home to.”
- "A stepparent, who may not even have married his or her spouse until after the spouse's children had reached adulthood, has no legal responsibility to his or her adult stepchildren."
- "The majority writes that the statute 'advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren.' I suspect that the statute was not employed in this case as a means to preserve Ohio's fractured extended families. Rather, the state used R.C. 2907.03(A)(5) as a means to prosecute a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim. R.C. 2907.03(A)(5) provides a shortcut to a conviction. This sort of use of the statute demeans its true purpose. The consent of the alleged victim should remain a valid defense in cases involving adults."
