In his opinion for the Supreme Court in Lawrence v. Texas, holding that Texas could not apply its criminal law to consensual homoseuxal sex between adults, Justice Anthony M. Kennedy, Jr., made clear that the case before the Court did not involve minors, and thus the Court was not ruling on whether minors have a due process right to engage in consensual sex. Most of the cases involving minors concern sex between adults and minors, or between older teens and much younger teens. Courts have rarely addressed the question whether pre-teens have any due process rights regarding the physical expression of their sexuality with members of their own age group.
The Ohio Supreme Court had just addressed the issue of sex among young age peers in In re D.B., Slip Opinion No. 2011-Ohio-2671 (June 8, 2011).
D.B., a 12-year-old boy at the time of prosecution, was charged with violating R.C. 2907.02(A)(1)(b), the portion of Ohio