Ohio’s sex offender risk-based registration scheme was enacted in 1997. Since then, Ohio sex offender laws have dramatically evolved into their current existence: three levels of sex offender classification determined solely based upon the offense of conviction, and for those deemed Tier III offenders – the most severe – no opportunity to challenge that classification.
Rather, Tier III sex offenders must register with the sheriff in the county in which they reside every ninety days until death, and no court can decide otherwise. In addition to their new persona, Tier III sex offenders are subject to community notification, residential housing restrictions, and are required to report any change to their name, address, employment, schooling, license plate, and email address, among others.
An Order issued in August of 2017 by the United States District Court for the Southern District of Ohio could be the beginning of the next evolution in the life of Ohio’s sex offender scheme: an opportunity for offenders convicted and sentenced under former Chapter 2950 of the Ohio Revised Code, or “Megan’s Law,” to be brought before a court and potentially re-classified if the court finds the offender is unlikely to commit another sex offense.
The Evolution of Ohio’s Sex Offender Scheme
In October of 2012, Jane Doe, through her attorneys with the Ohio Justice & Policy Center in Cincinnati, Ohio, filed a complaint under 42 U.S.C. § 1983 alleging her constitutional rights to procedural and substantive due process were being violated; Jane was convicted of unlawful sexual conduct with a minor in 2006 and classified as a “sexual predator” by the sentencing court – under Ohio’s former sex offender scheme, state trial judges classified individuals convicted of sex crimes following a hearing based on a case-by-case analysis of statutory factors of “dangerousness.”
As Jane’s complaint details, former Ohio Revised Code § 2950.09(D)(1) entitled offenders classified as “sexual predators” to a hearing either one year before release from prison or one year after the conviction if he or she was not sentenced to prison time. If reclassification was denied at that time, the offender could request a new hearing after five years. After the 2003 amendments, Ohio Revised Code § 2950.07(B)(1) provided that, “[i]n no case shall the lifetime duty to comply… be removed or terminated” and § 2950.09(D)(2) read “the classification or adjudication of the offender as a sexual predator is permanent and continues in effect until the offender’s death…”
In 2007, Megan’s Law was replaced by the federally-mandated Adam Walsh Act (“AWA”), which completely eliminated the judicially-determined classification scheme and mandated Tier I, II, and III sex offender classifications based solely upon the offense of conviction. As originally enacted, the AWA required offenders convicted and classified under Megan’s Law to be re-classified as either Tier I, II, or III sex offenders, but the Ohio Supreme Court struck down that requirement as unconstitutional in State v. Bodyke, 126 Ohio St.3d 266 (2010). Thus, individuals classified as “sexual predators” pursuant to pre-2007 Megan’s Law, like Jane, remain classified as such today.
Jane Doe v. Mike DeWine, Attorney General, et al.
Jane did not pray for compensatory or punitive damages; she prayed for declaratory relief and a hearing to allow the sentencing court to revisit their determination as to her “dangerousness.” She sought the opportunity to be heard.
According to her complaint, after Jane was convicted in 2006, she completed sex offender treatment and counseling, and was assessed by two separate sex offender treatment professionals who concluded she was low-risk to reoffend. Jane therefore alleged that her continuing classification as a “sexual predator” was a dissemination of false information, and Ohio’s failure to allow her a hearing was a violation of her procedural and substantive due process rights under the federal Constitution. Among various other liberty interests, Jane alleged her status as a predator unconstitutionally precluded her from living in federally-subsidized housing – because of this, Jane was having difficulty securing a home for herself and her four children. She pleaded that, given the opportunity to be heard, she could prove she should not be classified as a “sexual predator” and the court would re-classify her as a “sexually oriented offender,” which would mean her registration requirements would end in 2016, rather than continuing until her death.
The named defendants – three state actors responsible for maintaining Ohio’s Sex Offender Registration and Notification system – immediately moved to have Jane’s lawsuit dismissed against them. They claimed that, in part, they were “arms of the state” and thus immune from liability, and that Jane’s claims are barred and should have been raised at the trial court level when she was convicted in 2006. The court disagreed. Jane’s lawsuit remained alive.
Not much occurred between the denial of the defendants’ Motions to Dismiss and the filing of their Motions for Summary Judgment a mere six months later. Most of the defendants’ arguments on summary judgment were the same alleged as their original basis to dismiss. The court’s 32-page opinion carefully reviewed the applicable facts and law before finding that Jane’s constitutional rights to procedural due process were being violated – her inability to secure federally-subsidized housing was sufficient to trigger constitutional protection.
The court’s August 8, 2017 Order read, in part: “The Court STRIKES DOWN AS UNCONSTITUTIONAL Ohio Revised Code §§ 2950.09(D)(2) (2005) (effective 4-29-2005) and 2950.07(B)(1) (2007) (effective 7-31-2003) to the extent they forever prohibit the removal or termination of a ‘sexual predator’ classification with its requirements and duties.”
This is no small victory. Ohio’s sex offender laws have withstood the vast majority of challenges to their constitutionality. However, in the last year, there has a been a push for reform to Ohio’s sex offender registration scheme; in June of this year, the Ohio Criminal Justice Recodification Committee issued its recommended changes to the Senate. The Committee recommended a new system that allows Ohio judges to determine whether Tier I and II offenders (the least serious tiers) should be required to register. Tier I offenders would only be required to register if deemed to be a danger to the community or likely to reoffend. Download the Committee’s entire comprehensive plan in bill form.
The Committee did not recommend changes to Ohio’s scheme as to Tier III (or lifetime) sex offenders, but did recommend certain Tier III offenses result in classification of a lower tier. If these recommendations become law, the crime of unlawful sexual conduct with a minor, of which Jane was convicted, would result in Tier I sex offender registration – this means an individual convicted of the same offense as Jane would only be required to register as a sex offender for fifteen years, and no community notifications would be required.
Jane’s future, however, is still a question mark.
The August 2017 Order is currently pending appeal in the Sixth Circuit.
Call the Milano law firm if you have been charged, or need help with, the following sex crimes: