More on Ohio Incest Case

I had a bit to say about the case yesterday. Volokh Conspiracy and Sentencing Law & Policy have emphasized different aspects of the case in their coverage.  Professor Berman focused on the sentence (probably not a surprise):

The case has understandibly garnered attention because of the conviction itself raises an interesting due process liberty issue.  But, after reading the case, I could not help but wonder about whether the not-minor sentence imposed might ground a different kind of legal challenge.  Defendant Lowe, after pleading no contest, received a sentence of "120 days of incarceration and three years of community control [and was also classified] as a sexually oriented offender."  Though perhaps there were some unstated aggravating facts, this seems to me to be pretty harsh sentence for consensual sexual relations between two willing adults.

Professor Adler is curious to see how this plays out in terms of Lawrence v. Texas:

Key to the majority's ruling was its conclusion that Lawrence failed to announce a fundamental right or apply heightened scrutiny, making it easier to sustain other state laws governing consensual sexual activity. This interpretation makes Lawrence a less significant decision as it limits the "threat" Lawrence poses to other state efforts to regulate morality and makes Lawrence a much less effective weapon against the criminalization of victimless crimes.

Comments

[abyss2hope]

It's important to note that the case which failed its appeal with this ruling wasn't in fact a victimless crime since both parties don't agree that the sex was consensual.

The woman reported being raped. Like many rape cases, the alleged rapist took a plea deal.