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Daily Court Reporter - News Supreme Court of Ohio heard oral arguments, including one whether gross sexual imposition charges can be brought against to minors under the age of 13


Supreme Court of Ohio heard oral arguments, including one whether gross sexual imposition charges can be brought against to minors under the age of 13

Dan Trevas, Supreme Court of Ohio

The Ohio Supreme Court heard four oral arguments on last week on Wednesday, May 17th, including one that considered whether Ohio’s gross sexual imposition law can be applied to minors if both parties are under the age of 13.

Oral Arguments

The four cases to considered on Wednesday were streamed live online at and broadcast live on The Ohio Channel.

Summaries Available

Below is a summary of the four arguments heard on Wednesday. Along with the descriptions in this article, the Office of Public Information has released in-depth summaries of the four cases available online at:

State of Ohio ex rel. Kurt Singer v. Fairland Local School District Board of Education, Case no. 2015-1517

Writ of Mandamus

ISSUE: Is an employee who works more than 120 days in a public school district a “regular nonteaching school employee” under R.C. Chapter 3319 and entitled to the protections and benefits of a regular employee even if the school lists the worker as a “substitute” who doesn’t have a written contract?


Kurt Singer was hired by the Fairland Local School District in Lawrence County as a custodian in 2006. He has been employed by the district every successive year, including summers, and performs all the same duties as the regular custodians. For nine consecutive years, Singer has been labeled a “substitute” by Fairland, which means he doesn’t have a written contract, is excluded from the nonteaching employee union, earns about half the hourly wage of the full-time custodians, and doesn’t receive benefits or cost-of-living salary adjustments. He also lacks the job security granted to school district employees embedded in R.C. Chapter 3319.

Singer charges the district uses him as a “regular” employee so that the district can avoid hiring more regular employees. In some instances a full-time custodian will spend half a work day acting as a bus driver and Singer spends a half day doing the work of the full-time custodian who is driving the bus. This allows the district to avoid hiring more regular bus drivers, he asserts. He also considers his work full-time because on timesheets he is assigned to work alongside regular custodians, and while labeled a “substitute” on the district records, he isn’t substituting for anyone.

Singer asked the board of education to provide him with a written contract, and declare that he worked more than three consecutive years as a regular employee. Having worked regularly for three years, Singer insists he is eligible for a continuing contract with the district that should provide him with the full benefits of all other long-standing district employees.

The school board rejected Singer’s argument, and he asks the Supreme Court Sing. The Court agreed to hear his case.

In the Matter of the Complaints of Katherine Lycourt-Donovan, Seneca Builders LLC, and Ryan Roth et al. v. Columbia Gas of Ohio Inc., Case no. 2016-0080

Public Utilities Commission of Ohio


Did the Public Utilities Commission of Ohio misinterpret R.C. 4905.20 and R.C. 4905.21 and authorize a natural gas utility to unilaterally terminate service to a Toledo neighborhood without commission oversight and customer due process?

Was the PUCO’s determination that the natural gas utility didn’t provide inadequate service improper under the statutes?


Megan Simmons, a resident in a Toledo subdivision called Graystone Woods, contacted Columbia Gas on May 24, 2012, about dead vegetation in her yard. After detecting natural gas in the yard and near the home’s foundation, Columbia Gas shut off service to Simmons’ house. A few days later, Simmons reported an odor inside her home. Following further testing, Columbia Gas stopped natural gas service to 13 homes on the street on May 31. On Aug. 23, 2012, Columbia Gas dug up the main gas line feeding into Graystone Woods and capped it.

Graystone Woods property owners Katherine M. Lycourt-Donovan, Seneca Builders, Ryan Roth, and R&P Investments filed complaints with the Public Utilities Commission of Ohio (PUCO). After conducting hearings in 2013 and 2015, the PUCO determined that Columbia Gas found explosive levels of gas in the neighborhood and disconnected service to prevent a possible explosion. Stating that pipeline pressure and chemical tests showed that its gas lines weren’t the source of the gas leaks, Columbia Gas reported that service was discontinued for safety reasons. The PUCO agreed, ruling the stray gas was a safety hazard; the gas lines were temporarily disconnected, not abandoned; and the company’s actions didn’t constitute inadequate service. Columbia Gas has refused to restore service until the property owners fix the gas hazard, which the PUCO decided was justified and reasonable.

The property owners appealed the PUCO’s decision to the Ohio Supreme Court, which must review appeals from the state regulatory agency.

In re: D.S., Case no. 2016-0907

Tenth District Court of Appeals (Franklin County)


Is Ohio’s gross sexual imposition statute, R.C. 2907.05(A)(4), unconstitutional as applied to a child under the age of 13 who allegedly engaged in sexual contact with another child under 13?

Did a juvenile court abuse its discretion when it directed the use of non-judicial community resources in lieu of prosecution for a 12-year-old boy facing three complaints of gross sexual imposition?


In 2013, D.S. was charged in Franklin County Juvenile Court with three counts of gross sexual imposition, R.C. 2907.05(A)(4). The charges are based on an encounter between D.S and D.M. who live in the same household along with the father of D.S. and the mother of D.M. At the time of the alleged incident, D.S. was 12 years and three months old, and D.M was 9 years and 10 months old. The complaint alleged D.S. touched D.M.’s penis and that D.S. engaged in anal and oral intercourse with D.M. There was no allegation of use of force by D.S. or physical resistance by D.M.

In 2014, attorneys for D.S. sought to dismiss the charges based on the Ohio Supreme Court’s 2011 In re D.B. decision, which found that Ohio’s statutory rape law is unconstitutional as applied to a child under 13 who engaged in sexual conduct with another child under 13. The Franklin County Prosecuting Attorney’s Office objected to the motion to dismiss the charges, which was considered by a juvenile court magistrate. The magistrate refused to dismiss the charges.

The juvenile court judge reviewing the magistrate’s decision noted that the closeness in age made it difficult to determine if one boy should be charged with a crime and not the other boy. The judge noted that the two complaints involving intercourse could have been charged as rape, but that would violate the Supreme Court’s In re D.B. decision. The juvenile court stated it was unwilling to conclude that the gross sexual imposition law is unconstitutional in all cases involving children under 13, but in this case it would be unconstitutional. The court decided to invoke Juvenile Rule 9, which allowed the court to dismiss the case and use alternative methods of treatment rather than prosecution. The court then ordered treatment for both children.

But prosecutors appealed and the Tenth District Court of Appeals decided 2-1 to reverse the juvenile court, finding that it wasn’t a violation of D.S.’s constitutional rights to charge him with gross sexual imposition and should have allowed the prosecution to present more evidence. The dissenting appellate judge found that under Juv. R. 9(A), the trial court didn’t abuse its discretion when it dismissed the complaint.

D.S. appealed to the Supreme Court, which agreed to hear the case.

State of Ohio v. Orlando Batista, Case no. 2016-0903

First District Court of Appeals (Hamilton County)


Does R.C. 2903.11(B) violate the equal protection clauses of the Ohio and U.S. constitutions because:

there is no rational basis for a distinction between HIV¬positive individuals and individuals with other infectious diseases, such as Hepatitis C?

there is no rational basis for a distinction between the methods of transmission of HIV?

the statute is not rationally related to the government’s purpose?

Is R.C. 2903.11(B) a content-based regulation on speech that, under a strict-scrutiny standard, unconstitutionally compels speech and usurps the constitutional right to refrain from speaking?


Orlando Batista didn’t inform his girlfriend, identified as R.S., that he had HIV when they began having a sexual relationship in November 2013. R.S. was subsequently diagnosed as HIV positive. Batista was indicted in Hamilton County on one count of felonious assault, a second-degree felony based on R.C. 2903.11(B)(1). The statute prohibits a person with HIV from knowingly engaging in sexual conduct without disclosing the HIV-positive status beforehand.

Batista pleaded no contest. At the sentencing hearing, R.S. said Batista had also infected another woman, with whom he was sexually involved, as well as his wife, who had passed the virus on to one of their children. The trial court found him guilty and sentenced him to eight years in prison.

Batista filed an appeal with the First District Court of Appeals, which rejected his claims, including assertions that the law violates both equal-protection and free-speech rights. He appealed to the Ohio Supreme Court, which agreed to review the issues.

Date Published: May 24, 2017


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