Child death reveals shortcomings in law

Published 12:00 am Tuesday, September 11, 2007

The recent tragic death of a two-year-old child left in a hot car in Clermont County is an example of an event that results in new laws.

And while it is too early to say what, if any, action legislators will take, we will certainly look at current laws and how they helped or hindered the county prosecutor.

Clermont County Prosecutor Don White said he did not press charges against the mother because the facts of the case did not support a finding of “recklessness,” which in Ohio requires that the individual knew the risks involved and deliberately chose to ignore those risks.

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In this case it means the mother would have had to deliberately leave the child in the car, even though she knew there was a risk the child would be injured or die from the suffocating heat. Without facts to prove her actions were deliberate, the prosecutor would not have been able to prove a charge of child endangerment.

Since this finding of recklessness is necessary under current law to bring charges of child endangerment, White was obliged to follow the law and not the understandably emotional responses of people in the community.

Legislators make the laws that direct the actions of prosecutors. So, as I read and watched the news coverage of this tragedy and learned other states have statutes that may have permitted charges to be brought, I wanted to find out why Ohio is different.

I called White and asked if we needed to change Ohio law. He said we did.

He offered the assistance of his office and I agreed to work with him and State Rep. Joe Uecker to bring this issue before the legislature. This tragedy occurred in my Senate district and Uecker’s House district.

While we would be considered the logical people to carry this legislation, any legislator can submit a bill to address this situation.

My next call was to the legal counsel for Senate Republicans. Since I am not an attorney, I asked for help from someone who is to review the current law and make recommendations on changes. I will also be working with the Ohio Prosecuting Attorneys Association, the professional organization that represents prosecutors before the legislature in Columbus.

I will be meeting with our legal counsel this week so I will have a better understanding of the nuances of the law. Within the next few weeks I will work with White’s staff on language that he feels is necessary to provide more flexibility to prosecutors.

At some point we will ask the Legislative Services Commission to draft a bill based on the language provided by White’s staff and other interested parties. These typically would be the OPAA and defense attorneys.

At the same time we are drafting language I will give my Senate colleagues a short description of the bill and ask them to consider becoming co-sponsors. This usually takes a week to 10 days.

Once the final draft comes back from LSC, I will add the names of the cosponsors and introduce the bill. Within a few weeks of that date I will get a chance to give sponsor testimony on my bill before a Senate committee. Over subsequent weeks other interested parties will be able to testify in support or opposition to the bill.

This deliberative process will allow us to review current law, propose changes and act so prosecutors in future cases will have the tools they need to bring appropriate charges.

To contact Senator Tom Niehaus call 614-466-8082, e-mail him at, or write to him at the Ohio Senate, Room 38, Statehouse, Columbus OH 43215.