6th Circuit: Lawrence v. Texas does not impair filing of incest charges for sex with adult step-daughter

Lowe v. Stark County Sherriff, No. 09-3942 (6th Cir. Dec. 8, 2011) (Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.)

GRIFFIN, Circuit Judge. Petitioner Paul Lowe appeals the district court’s denial of his petition for a writ of habeas corpus, arguing that the Ohio Supreme Court unreasonably applied federal law as clearly established by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), when it upheld his incest conviction for engaging in sexual conduct with his stepdaughter. We disagree and therefore affirm . . .

Lowe was charged with one count of sexual battery for engaging in sexual conduct by means of sexual intercourse with his 22-year-old stepdaughter, in violation of Ohio Rev. Code § 2907.03(A)(5), which makes it a crime to “engage in sexual conduct with another, not the spouse of the offender, when . . . [t]he offender is the other person’s natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person.” . . .

A similar conclusion applies here. As the Seventh Circuit held, Lawrence did not address or clearly establish federal law regarding state incest statutes . . .