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It’s OK to hold police officers to higher standard

Police face off with demonstrators outside the police

Police face off with demonstrators outside the police station as protests continue in the wake of 18-year-old Michael Brown's death on Wednesday, Oct. 22, 2014, in Ferguson, Mo. Brown, 18, was shot and killed by Ferguson police Officer Darren Wilson on Aug. 9. The protest was scheduled to coincide with a day of action planned to take place nationwide to draw attention to police brutality. Photo Credit: Getty Images / Scott Olson

Can police be held to a higher standard than civilians? The Ohio Supreme Court said no last week, in striking down a law that criminalizes sex between a police officer and a minor. The court’s ruling, based on the principle of equal protection of the laws, probably goes too far. Law enforcement has special privileges, and can rationally be subjected to special burdens.

The case involving police officer Matthew Mole is a bit disturbing. After an online courtship, Mole met a teenage male in the middle of the night at his home for a sexual encounter. Mole testified that he thought the teenager was 18; in fact, he was 14.

Prosecutors charged the police officer with two crimes. One was Ohio’s ordinary statutory rape charge. It says that anyone 18 or older may not have sex with someone ages 13 to 15 if he or she knows the person’s age or recklessly disregards it.

The other charge involved a separate Ohio law that makes it a crime for a police officer to have sex with someone who is under 18 and at least two years younger than the officer. This law makes no mention of the officer knowing the age of the other person.

A jury couldn’t agree that Mole was guilty of the first charge, and a trial judge dismissed it. That meant there was no evidence sufficient to prove Mole knew the young man’s age or recklessly disregarded it. But Mole was convicted of the second charge, which didn’t require any such knowledge on his part.

The Ohio Supreme Court struck down the conviction. It based its reasoning on the equal-protection clause of the Ohio Constitution as well as the federal equal-protection clause. As a result, the decision can’t be appealed to the U.S. Supreme Court. Ohio’s supreme court has final say on the meaning of Ohio’s constitution.

The principle of equal protection requires that any law treating some class of people differently from others have a rational basis. Ordinarily, the rational basis requirement is pretty minimal. The legislature doesn’t have to explain its reasons, and courts are supposed to accept any conceivable rational argument for why a law was enacted.

It’s therefore extremely unusual for a court to strike down a law as lacking a rational basis. The only exception is where a law displays animus toward a group, like gay people. Thus the U.S. Supreme Court held in 1996 that a law denying gay people protection against discrimination had no rational basis.

No one thinks the Ohio law is based on animus for police. The state said the law served two purposes: holding the police to a higher standard and protecting vulnerable minors.

The court held that these rationales were insufficiently rational — because the law as written doesn’t require the police officer to have met the minor in the course of police work or investigation.

Mole, for example, met the teenager online, not while doing his job. The teen may not have even known he was a cop.

Ohio law criminalizes a wide range of sexual relationships that reflect a power differential between otherwise consenting partners. It outlaws sex between a teacher or coach and his or her students, between a prison guard and an inmate, a cleric and a parishioner, and a mental health professional and a patient, among others.

The Ohio court noted that in each of these cases, the law required a direct professional relationship before prohibiting sex. The police law is different because it covers all officers, all the time, regardless of any professional relationship with the minor.

This reasoning is doubtful. The Ohio legislature might well have believed that police officers have an inherent element of authority connected to their jobs and are therefore effectively in a professional relationship with any minor. A couple of judges dissented from last week’s ruling, and one of them speculated that police officers would want to hide a sexual relationship with minors and would therefore be vulnerable to blackmail.

The point isn’t that the law is a good one, or that it isn’t. Rather, it seems to satisfy the requirement of having a conceivable rational basis.

Using the constitution to strike down laws that seem unwise or even generally unfair has a bad legacy in U.S. constitutional history. Judges shouldn’t substitute their opinions for the legislature’s. Judges should strike down laws when they discriminate against vulnerable minorities or when they violate fundamental rights.

The police aren’t a minority, and the courts have never recognized a right to underage sex. The Ohio decision may be well meaning, but it’s constitutionally wrong.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.

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