Justice O'Connor on Family Law
From Judgepedia
In a 5-2 decision, Justice O'Connor concurred in the dissent of Justice Moyer. The Majority opinion, written by Justice Lanzinger, concluded that "[Ohio law] does not permit a parent's fundamental right to raise his or her child to be terminated based on mental retardation alone," and that "when determining the best interest of a child, at a permanent-custody hearing, a trial court may not base its decision solely on the limited cognitive abilities of the parent." The Majority reasoned that courts should instead consider factors such as the parents relationship with the child, whether they had ever harmed him, and where the child wished to live, and that there was no evidence to indicate that the child "lacked adequate clothign, food, shelter, or care," while he "performed well in school and displayed appropriate behavior.
In their dissent, Justices O'Connor and Moyer indicated that they would have terminated the parents' custody of their children. They specifically noted that they would have terminated custody of the parents even if they were of average intelligence, given the following:
- "The parents have no real comprehension as to why [their son] was removed from their care."
- "The mother displayed aggressive behavior towards her son."
- The parents displayed "lack of understanding of basic parenting concepts." '
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."
