AKRON, Oh.—So this older guy walks into a bar, spots a 22-year-old cutie sipping a brew, takes the seat next to her, chats her up, and the two of them go home together and screw their brains out. Well, the joke's on him if that 22-year-old happens to be the guy's stepdaughter, though completely unrelated to him genetically: Ohio law calls that a crime.
Thank goodness the Sixth Circuit Court of Appeals didn't buy Paul Lowe's excuse in his habeas petition for why he should be released from prison, where he's been cooling his heels, hanging out with the Wrong Crowd and eating shitty food for more than six fucking years! For having sex with someone he knew simply because he was once married to her mother!
See, Ohio Rev. Code §2907.03(A)(5) makes it a crime to "engage in sexual conduct with another, not the spouse of the offender, when ... [t]he offender is the other person’s natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person." At his trial, Lowe argued that the legislature must have meant for that section to apply to parents of minor stepkids who tried to have sex with them, because who would be foolish enough to try to make it illegal for two unrelated adults to have consensual sex together?
But Lowe apparently never figured on the provincialism of so many of Ohio's judges, since his conviction was affirmed on appeal by both the Ohio Court of Appeals and the Ohio Supreme Court. So Lowe decided to file a habeas petition—a form of appeal—with the federal district court in Ohio, where he fared no better.
In his federal appeal, as he had in his state appeals, Lowe argued that the U.S. Supreme Court's opinion in Lawrence v. Texas invalidated Ohio's statute because "the government had no legitimate interest in regulating sexual activity between consenting adults." But the federal magistrate judge who got the case decided that the Ohio Supreme Court's failure to overturn the conviction was "not unreasonable" because the holding in Lawrence "was not clear as to the nature of the right it considered or the standard of review it applied to the Texas statute." (That, of course, might have had something to do with Justice Antonin Scalia's claim in his Lawrence dissent that, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick] validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding." [Emphasis added.] Trouble is, the majority opinion in Lawrence never said that; hence the "unclarity.")
The Sixth Circuit Court of Appeals, sadly, embraced the trial court's conclusions almost wholeheartedly.
"Furthermore, assuming that Lawrence clearly established a fundamental right [to consensual adult sex acts] and/or a higher standard of review [than mere 'rational basis'], we hold that neither the right nor standard is implicated in the present case," wrote Judge Richard Allen Griffin for the Sixth Circuit panel. "In this regard, we agree with the Seventh Circuit’s decision in Muth v. Frank. There, the defendant was convicted of incest in a Wisconsin state court and argued that 'Wisconsin’s incest statute is unconstitutional insofar as it seeks to criminalize a sexual relationship between two consenting adults.' The defendant filed a petition for habeas corpus relief that the federal district court denied. On appeal, the Seventh Circuit affirmed, concluding that '[g]iven ... the specific focus in Lawrence on homosexual sodomy, the absence from the Court’s opinion of its own 'established method' for resolving a claim that a particular practice implicates a fundamental liberty interest, and the absence of strict scrutiny review,' there was no clearly established federal law 'that supports [the defendant’s] claim that he has a fundamental right to engage in incest free from government proscription'." [Citations removed here and below]
Of course, Muth v. Frank was a case of actual incest, whereas Lowe's "incest" involved a woman to whom he had no genetic relationship... but the obviously conservative Sixth Circuit panel apparently didn't think that was a distinction worth mentioning. The panel also quoted from cases construing Lawrence from the Tenth and Eleventh Circuits to bolster its "diversity of opinion" meme, and even has the moxie to quote Justice John Paul Stevens' concurrence in Wright v. Van Patten, a 2008 case where the justice stated, "[T]he question is not the reasonableness of the federal court’s interpretation [of the precedent at issue], but rather whether the [state] court’s narrower reading of that opinion was 'objectively unreasonable'." What could be more "objectively unreasonable" than finding that a man whose only relation to his sex partner was a legal one had nonetheless engaged in incest with her?!?
"Unlike sexual relationships between unrelated same-sex adults, the stepparent-stepchild relationship is the kind of relationship in which a person might be injured or coerced or where consent might not easily be refused, regardless of age, because of the inherent influence of the stepparent over the stepchild," the panel claimed with no scientific citation whatsoever. "Moreover, the State of Ohio’s interest in criminalizing incest is far greater and much different than the interest of the State of Texas in prosecuting homosexual sodomy. Ohio’s paramount concern is protecting the family from the destructive influence of intra-family, extra-marital sexual contact. This is an important state interest that the Lawrence Court did not invalidate." [Emphasis added.]
But wait; it gets worse:
"Lowe’s remaining arguments are meritless," the panel concluded. "His claim that the Ohio law is contrary to Lawrence because it is morality-based fails for two reasons. First, the state has a legitimate and important interest in protecting families. Second, the Lawrence Court did not categorically invalidate criminal laws that are based in part on morality. Finally, Lowe’s assertion that Ohio’s 'generalized interest in protecting the family unit' cannot support the statute as applied in this case because 'there is no evidence in the record that beyond [his] technical status as stepfather an actual family unit even existed' is also without merit. Ohio has an interest in protecting all families against destructive sexual contacts irrespective of the particular factual family dynamic." [Emphasis in original]
So: the Ohio law exists to prosecute adults who have consensual sex with each other but have no genetic relationship, in order to protect the judges' concept of a "family," even though there's no evidence that a "family" even existed in this case!
Somehow, we have the feeling that this case is ripe for Supreme Court review. Hopefully Lowe's attorney, J. Dean Carro, a professor at the University of Akron School of Law and director of the school's legal clinic, will file the necessary cert petition.
(h/t Howard Bashman)