In Re D.S., 93 N.E.3d 937

D.S., age 12, was charged with three counts of gross sexual imposition (R.C. 2907.05(A)(4)) for sexual contact with another boy under age 13; complaint alleged sexual contact (including anal intercourse and fellatio) but no force.
D.S. moved to dismiss, arguing R.C. 2907.05(A)(4) is unconstitutional as applied (invoking In re D.B.) and asking dismissal under Juv.R. 9(A); a magistrate denied the motion.
The juvenile court sustained D.S.'s objections, dismissed the complaint under Juv.R. 9(A) (finding formal court action not in the children’s best interests) and alternatively held the statute unconstitutional as applied.
The state appealed; the court of appeals reversed the juvenile court, finding the record insufficient for dismissal and that R.C. 2907.05(A)(4) provides a mens rea element to distinguish offender from victim.
The Ohio Supreme Court granted review and reversed the court of appeals, reinstating the juvenile court's Juv.R. 9(A) dismissal and declining to decide the as-applied constitutional claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal under Juv.R. 9(A) is reviewable only for abuse of discretion	D.S.: Juvenile court's non-judicial diversion decision is discretionary and should be reversed only for abuse of discretion	State: Juvenile court abused discretion; record too undeveloped to dismiss	Court: Yes — Juv.R. 9(A) dismissal reviewed for abuse of discretion; no abuse here
Whether dismissal under Juv.R. 9(A) was appropriate on the available record	D.S.: Facts (close ages; no force) suffice to justify avoiding formal court action	State: Court should have developed fuller record before dismissing; mens rea in statute can distinguish roles	Court: Juvenile court reasonably weighed interests and did not abuse discretion in dismissing under Juv.R. 9(A)
Whether R.C. 2907.05(A)(4) is unconstitutional as applied (as raised by D.S.)	D.S.: Gross sexual imposition is indistinguishable between two children <13 without force, so statute is arbitrary per In re D.B.	State: R.C. 2907.05(A)(4) contains a purpose mens rea that allows distinguishing offender from victim	Court: Did not decide the constitutional question; avoided it because dismissal under Juv.R. 9(A) was dispositive

In re D.B., 129 Ohio St.3d 104 (court held statutory-rape provision unconstitutional as applied to children under 13 engaging in sexual conduct with each other)
In re M.D., 38 Ohio St.3d 149 (juvenile-policy/diversion considerations support avoiding formal prosecution for sexual interactions among young children)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse-of-discretion standard explained)