In re D.S. (Slip Opinion), 2017 Ohio 8289

D.S., age 12, was charged in juvenile court with three counts of gross sexual imposition (R.C. 2907.05(A)(4)) for alleged sexual contact with another boy who was under age 13.
Complaint alleged sexual contact (touching/rubbing penis; anal intercourse; fellatio) but did not allege force or threat of force.
D.S. moved to dismiss, relying on In re D.B. and arguing R.C. 2907.05(A)(4) is unconstitutional as applied when both parties are under 13; juvenile magistrate denied dismissal; juvenile court sustained objections and dismissed the complaint under Juv.R. 9(A) and as-applied constitutional grounds.
The state appealed; the court of appeals reversed, holding the record was insufficient for Juv.R. 9(A) dismissal and that the statute could provide a mens rea-based distinction between offender and victim.
Ohio Supreme Court accepted review and reinstated the juvenile court’s dismissal, holding the juvenile court did not abuse its discretion under Juv.R. 9(A) and expressly declined to decide the as-applied constitutional challenge.

Issue	Plaintiff's Argument (State)	Defendant's Argument (D.S.)	Held
Whether a juvenile court may dismiss a formally filed delinquency complaint under Juv.R. 9(A) and the appropriate standard of review	Juv.R. 9(A) does not authorize dismissal of a formally filed complaint; dismissal was an abuse of discretion	Juv.R. 9(A) empowers juvenile courts to avoid formal court action; dismissal reviewed for abuse of discretion	Dismissal under Juv.R. 9(A) is reviewed for abuse of discretion; the juvenile court did not abuse its discretion in this case (dismissal reinstated)
Whether R.C. 2907.05(A)(4) (gross sexual imposition) is unconstitutional as applied when both participants are under 13	The statute contains a mens rea element (purpose to arouse/gratify) that lets the State distinguish offender from victim; thus it is not unconstitutional as applied	By analogy to In re D.B., charging a child under 13 for sexual acts with another child under 13 is arbitrary and unconstitutionally vague when no force is alleged	Court avoided the constitutional question as unnecessary; did not decide whether R.C. 2907.05(A)(4) is unconstitutional as applied

In re D.B., 129 Ohio St.3d 104 (2011) (held R.C. 2907.02(A)(1)(b) unconstitutional as applied when both parties are under 13)
In re M.D., 38 Ohio St.3d 149 (1988) (juvenile-court policies and Juv.R. 9 bear on whether formal prosecution is appropriate)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
State v. Adams, 62 Ohio St.2d 151 (1980) (abuse-of-discretion standard explained)
State v. Dunlap, 129 Ohio St.3d 461 (2011) (gross sexual imposition requires proof of purposeful arousal/gratification mens rea)