Not only were the facts undisputed, but they were appalling. Yet Miranda Smith did it anyway.

The Wednesday ruling came in the case of a Highland County woman charged with rape involving a two-year-old child. The Ohio Supreme Court reversed the decisions of an appeals court and trial court that convicted the woman of rape, saying instead, the actions, which she admitted to, constitute gross sexual imposition under state law. Gross sexual imposition is a lesser charge that could net less punishment.

Miranda Smith pleaded no contest to multiple sex crimes for a sex act she directed a child to conduct on her. She also filmed the act and sent the video to her boyfriend.

As the opinion makes somewhat more specific, Smith had her two-year-old son insert a ‘sex toy” into her vagina.The trial court and intermediate appellate court upheld the conviction for rape based on the plain meaning of the relevant statutes, Ohio R.C. 2907.02(A)(1)(b) and 2907.01(A), the latter defining “sexual conduct.”

(A) “Sexual conduct” means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

Notably, the definition includes “insertion, however slight,” goes on to state that the object must be inserted “into the vaginal or anal opening of another.”

The issue raised before the Ohio Supreme Court was whether the person into whom the object was inserted can be the rapist of the person doing the inserting. The Fourth District Court of Appeals held it could. The Supreme Court reversed.

Smith contends that to be guilty of rape by insertion under R.C. 2907.01(A), a defendant must have inserted a body part or object into another—as opposed to someone else having inserted a body part or object into the defendant. In other words, Smith argues that there was insufficient evidence to support her conviction because there is a legally significant distinction between engaging in sexual conduct with another and causing another to engage in sexual conduct. Given the plain and unambiguous statutory text, we agree.

Notably, if the rape charges fell, it’s not as if Smith would have walked, as there remained the lesser charge of gross sexual imposition. Ohio R.C. 2907.05(A). But the egregious conduct here, and particularly the fact that it involved a two-year-old, compelled the prosecution to go for rape.

The state asks us to ignore the word “another” and to conclude that Ohio law requires only an act of insertion and that it does not matter whether it is the victim or the defendant who does the inserting. In other words, the state is essentially asking us to rewrite R.C. 2907.02(A)(1)(b) to make the statute fit the facts of this case. We cannot do that, though.

Whether the specific language used in the definition simply lacked sufficient imagination to cover the various possible ways in which rape could be committed or intended not to include this conduct within its ambit, the Court held to this specific wording, “into another,” and rejected the interpretation to include Smith’s compelling her son to insert the sex toy into her.

The holding evoked outrage by activists.

It’s this focus on the language of the law rather than the impact the crime had on the child that troubles those who advocate for rape and sex crime survivors.

Amy Dudley is the director of the only accredited rape crisis center in Montgomery and Preble counties, the YWCA Dayton’s Center for Survivors of Sexual Violence. She said the fact that a defendant’s arguments seemed to matter more in this supreme court case than the long-term impact to the child is why laws need to change.

“If we can say that a 2-year-old was complicit in (Smith’s) sexual conduct, what does that say for older survivors?” Dudley said, after reviewing the case and watching oral arguments.

The reaction raised here is one that should give rise to grave concern, regardless of how repugnant the crime was or how it might impact “survivors.” Dudley condemns the Court not for its logic and reasoning, but because it places the language of the law above the “Impact” of the victim, part of the trend that criminality is less about the conduct than the “victim’s” feelings about the conduct.

Seeing a person’s sentence minimized in a crime of this type is something that could have impacts on the entire process of helping survivors, Dudley said. That’s why it’s important that the justice system turn toward a “survivor focus” while giving everyone involved the rights they are owed.

If the rhetoric sounds remarkably familiar, it’s the same rationalization that started on campus in Title IX sex cases, made its way across social media during the #MeToo hunts, and is now winding its way through courts and legislatures.

Notably, the prosecution charging rape, and the two lower courts sustaining the charge, did not let the language of the statute prevent Smith from being convicted, or a passionate “survivor” activist from condemning the Supreme Court’s “slavish” reliance on the language of the statute rather than focus on whether the victim feels that it should be rape.

The Ohio Prosecuting Attorneys Association said the outcome for the victim is not the fault of the court, but is “ripe for a legislative fix.”

“This was a despicable sexual act against an innocent two-year-old child and I think most Ohioans would be appalled to find out that it’s not considered rape to cause a young child to engage in sexual conduct like this,” Louis Tobin, executive director of the OPAA, told the OCJ.

That the act was despicable and “Ohioans would be appalled” may well be true, and the legislature may change the language to bring the conduct that occurred here within the definition provided by statute. But until that happens, faulting the Supreme Court for adhering to the language of the law because it fails to have a “survivor focus” is a matter of significant concern. The lower courts accepted the premise by ignoring the language of the statute in favor of whether this horrific conduct felt sufficiently rape-ish.

Whether this is just a matter of bad facts make bad law or the trend away from statutory language to what the victim feels is a crime, is unclear, but the trend in the public perception is clear, growing and dangerous.