Congratulations to AFPD Ed Weiss who scored a dismissal of a failure to register prosecution brought under SORNA in the S.D. of W.Va!
Ed argued (among other things) that SORNA did not apply to his client, who had been convicted of state sex offenses in 1995, released in 2005, and indicted for failing to register under SORNA on Nov. 26, 2006. The district court agreed and made a couple of important points that will be useful in other SORNA prosecutions:
1. The court found that the plain language of the statute required the AG to issue regulations before SORNA could be applied retroactively to people convicted of sex offenses before July 27, 2006. Those regulations were not issued until Feb. 28, 2007. Accordingly, the court found that the statute could not be enforced as a matter of law against people (like Ed's client) who were convicted before July 27, 2006 and charged with failing to register before Feb. 28, 2007.
2. The court found that under the plain language of the statute, defendants convicted of sex offenses before SORNA must have specific notice of their obligations to register under SORNA . It is not enough to show knowledge of some other registration obligation. As support for this reading, the court pointed to section IX of the DOJ's newly proposed guidelines, which were published for comment on May 30, 2007, see 72 Fed. Reg. 30210-01. Section IX acknowledges the statute's express notice obligations and gives some examples of how those obligations would be met in cases involving retroactive application of SORNA, including the following (with emphasis added):
Example 2: A sex offender is required to register for life by a jurisdiction based on a rape conviction in 1995 for which he was released from imprisonment in 2005. The sex offender was initially registered prior to his release from imprisonment on the basis of the jurisdiction's existing law, but the information concerning registration duties he was given at the time of release did not include telling him that he would have to appear periodically in person to verify and update the registration information (as required by SORNA § 116), because the jurisdiction did not have such a requirement at the time. So the sex offender will have to be required to appear periodically for verification and will have to be given new instructions about that as part of the jurisdiction's implementation of SORNA.
The court found that because there was no way to notify or register the defendant as required by SORNA at the time alleged in the indictment, the defendant "could not have knowingly violated SORNA, as SORNA did not apply to him. His registration under West Virginia's laws was not sufficient to notify him of any requirement to comply with SORNA."
NOTE that no jurisdiction has yet implemented SORNA (except maybe Ohio). Anyone with a client facing a SORNA prosecution should use this case and its reasoning to support their argument that SORNA cannot be applied to anyone who did not recieve specific notice under SORNA of their registration obligations. ..more.. Judge's Decision by Sara E. Noonan, Research & Writing Specialist, Sentencing Resource Counsel, Federal Public and Community Defenders, 408 Atlantic Avenue 3d floor, Boston, MA 02110
September 14, 2007
Congratulations to AFPD Ed Weiss who scored a dismissal of a failure to register prosecution brought under SORNA in the S.D. of W.Va!
Congratulations to AFPD Ed Weiss who scored a dismissal of a failure to register prosecution brought under SORNA in the S.D. of W.Va!
Static-99 (Hanson & Thornton, 2000) is the most commonly used actuarial risk tool for estimating sexual offender recidivism risk. Recent research has suggested that its methods of accounting for the offenders’ ages may be insufficient to capture declines in recidivism risk associated with advanced age. Using data from 8 samples (combined size of 3,425 sexual offenders), the present study found that older offenders had lower Static-99 scores than younger offenders and that Static-99 was moderately accurate in estimating relative recidivism risk in all age groups. Older offenders, however, displayed lower sexual recidivism rates than would be expected based on their Static-99 risk categories. Consequently, evaluators using Static-99 should consider advanced age in their overall estimate of risk. ..more.. by R. Karl Hanson, Public Safety and Emergency Preparedness Canada
In late 1999, the Sex Offender Assessment Board (SOAB), for its work assessing sexual offenders, both for court ordered and PBPP cases, began use of the RRASOR, Static 99, and MNSOST-R. The PBPP, upon recommendation of the SOAB, adopted the Static 99 as its objective risk assessment instrument to assist in determining the static level of risk to re-offend sexually posed by sex offenders. The Static-99 was first developed by Canadian researchers and includes ten items that take into account the offender’s prior criminal history, incidence of violence, relationship to the victim, and personal characteristics that may influence the decision of the PBPP. These variables have been shown to be statistically associated with recidivism in other jurisdictions. Within the Static- 99, there are four items that compose a condensed risk assessment instrument known as the Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR).
Summary of Research Design and Methodology
In order to measure the reliability of Static-99/RRASOR, two reliability tests were completed. The first consisted of a pilot test of 41 cases that were coded by independent scorers using case file data. A second test was conducted on a larger sample of 220 cases that were drawn for the validation study.
The validation sample consisted of 550 cases that reflected prisoners convicted of sex crimes and were released either between 1994 and 1995 (N=356) or in 2000 (N=194). The characteristics of the 550 cases were compared to the total universe of all released sex offenders. This analysis found the sample to be representative of all sex releases for the two time periods.
Two reliability tests were conducted to ascertain the reliability of three sex offender risk assessment instruments. In addition to the Static-99/RRASOR, the reliability of the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) was also assessed. The first test was a limited pilot study that consisted 41 cases, each scored twice on the three instruments. In order for the scoring of the items to be judged reliable, the two raters needed to assign the same score for at least 80 - 90 percent of the cases.
The pilot study revealed that the level of inter-rater reliability was unacceptably low for the MnSOST-R, based in large part on the information collected in the records of both the DOC and PBPP. While, the Static 99/RRASOR had higher levels of reliability, significant staff training and item refinement/clarification was required to improve the scoring of the Static 99/RRASOR; DOC and PBPP records are not a factor for RRASOR/Static 99. ..more.. by James Austin, Ph.D., Johnette Peyton, M.S., Kelly Dedel Johnson, Ph.D.
Static-99 Sex Offender Risk Assessment Course
Forensic psychologists and psychiatrists are frequently called upon to help assess the likelihood that a particular person will commit future acts of sexual violence (Campbell, 2004; Doren, 2002; Witt & Conroy, in press). Three plausible approaches to risk assessment have been described (Hanson, 1998) and to this point research has not shown any of the methods to be empirically superior to the others (see DeClue, 2005, commenting on Hanson & Morton-Bourgon, 2004). Two of the three approaches, the pure-actuarial and the adjusted-actuarial approaches, employ an actuarial instrument in the prediction process.1 In the pure-actuarial approach, the evaluator considers a predetermined set of risk factors and follows a pre-determined formula for weighing the combination of factors. In the adjusted-actuarial approach, the evaluator begins with an actuarial instrument but then may or may not adjust the estimated risk after considering additional variables not included in the actuarial instrument. ..more.. by Justice Institute of British Columbia
Revised - 2003
How To Use This Manual
In most cases, scoring a STATIC-99 is fairly straightforward for an experienced evaluator. If you are unfamiliar with this instrument we suggest that you turn to the back pages of this manual and find the one-page STATIC-99 Coding Form. You may want to keep a copy of this to one side as you review the manual.
We strongly recommend that you read pages 3 to 21 and the section “Scoring the STATIC-99 and Computing the Risk Estimates” before you score the STATIC-99. These pages explain the nature of the STATIC-99 as a risk assessment instrument; to whom this risk assessment instrument may be applied; the role of self-report; exceptions for juvenile, developmentally delayed, and institutionalized offenders; changes from the last version of the STATIC-99 coding rules; the information required to score the STATIC-99; and important definitions such as “Index Offence”, Category “A” offences versus Category “B” offences, “Index Cluster”, and “Pseudo-recidivism”.
Individual item coding instructions begin at the section entitled “Scoring the Ten Items”. For each of the ten items, the coding instructions begin with three pieces of information: The Basic Principle, Information Required to Score this Item, and The Basic Rule. In most cases, just reading these three small sections will allow you to score that item on the STATIC-99. Should you be unsure of how to score the item you may read further and consider whether any of the special circumstances or exclusions apply to your case. This manual contains much information that is related to specific uses of the STATIC-99 in unusual circumstances and many sections of this manual need only be referred to in exceptional circumstances.
We also suggest that you briefly review the ten appendices as they contain valuable information on adjusting STATIC-99 predictions for time free in the community, a self-test of basic concepts, references, surgical castration, a table for converting raw STATIC-99 scores to risk estimates, the coding forms, a suggested report format for communicating STATIC-99-based risk information, a list of replication studies for the STATIC-99, information on inter-rater reliability and, how to interpret Static -99 scores greater than 6. ..more.. by Andrew Harris, Amy Phenix, R. Karl Hanson, & David Thornton
I find the results of this recidivism study statistically invalid due to the selection process used which only allows high risk offenders into treatment. The state, in 2006, concluded that therapy does not reduce recidivism.
Initially the researchers chose everyone who was willing to participate in therapy. Then they divided that into two groups: A) Those who DID NOT participate in therapy; and, b) Those who DID particpate in therapy. No matter which group the person fell into each had to have a prior sex offense conviction.
Now the catch, in order to particpate in therapy a prescreening process was applied. i.e. risk assessment tools MnSORT-R, RRASOR, and Static 99 were used to chose who could go into therapy. ONLY those who "had a high likelihood to reoffend" were permitted in therapy.
Anyone who DID NOT fit that requirement was pushed into the group of those who DID NOT participate in therapy group. In other words the DID NOT participate group was a mixed group of offenders. It contained folks who were willing to take therapy but did not, and those who fell out of the prescreening process.
Now a review of Exhibit 2 (pg-3) shows the study was not interested in just new sex offenses, instead recidivism means any kind of offense. i.e., the definition of recidivism meant more than just sex offenses. It appears ridiculous to assume that sex offender treatment program (SOTP) is designed to reduce recidivism of all kinds of offenses.
Exhibit 2 shows of those who went through therapy, 12 committed a new sex offense, and only 6 of those in the opposing group committed a new sex offense. Based upon that outcome researchers concluded, that therapy did not reduce recidivism.
What? Remember, the deck is stacked, only high risk of reoffense folks went to therapy, and low or medium risk did not. The outcome was predictible based on the prescreening process.
This is why I feel the study is statistically invalid. Additionally I see a few other things but what I mentioned above was more than enough to go no further.
With that said, the study:
SEX OFFENDER SENTENCING IN WASHINGTON STATE: DOES THE PRISON TREATMENT PROGRAM REDUCE RECIDIVISM?
The 2004 Legislature directed the Washington State Institute for Public Policy (Institute) to conduct a comprehensive evaluation of the impact and effectiveness of current sex offender sentencing policies.1 Because this is an extensive topic, we are publishing a series of reports.
The Washington State Department of Corrections (DOC) has operated a prison-based Sex Offender Treatment Program (SOTP) at the Twin Rivers Corrections Center since 1988. The program has undergone a series of changes since its inception. Since 1996, the program has used a combination of treatment techniques including group therapy, psycho-educational classes, behavioral treatment, and family involvement. The length of treatment has decreased from two years in 1996 to approximately one year currently. Since 2000, sex offenders assessed as having a high likelihood to reoffend, based on their criminal history, are prioritized for program entry.2 (FN2: The SOTP uses three risk for sexual reoffense
assessments: MnSOST-R, RRASOR, and Static 99.)
Offenders selected for the treatment program must meet the following five requirements:
• Sex offense conviction
• Voluntary participation
• Admission of guilt
• One year minimum remaining in prison
• Medium or lower custody classification
This report estimates whether SOTP reduces recidivism by comparing the recidivism rates of sex offenders who were willing but did not participate in SOTP with those who did participate in the program. ..more.. by Washington State Institute for Public Policy
September 12, 2007
Still hasn't proved it can stop reoffenders
Patrick Velez walked into a fast-food restaurant in Pierce County and kidnapped two teenage female employees at knifepoint. He bound their wrists, taped their eyes and mouths shut, drove them to a secluded area. Then he raped one of the victims, who was 17.
Later convicted of the November 1981 crimes, Velez wound up spending eight years in sex-offender treatment, in and out of prison. He kept logs of his fantasies, took polygraph tests, underwent "arousal reconditioning" and learned how to have positive relationships.
By the time Velez left prison in 2000, officials still considered him a high-risk offender, but were encouraged by his progress. He had "done quite well in treatment," a therapist wrote in his prison records, and had demonstrated "good relapse-prevention knowledge."
Last month, prosecutors charged him with trying to strangle a woman after hiding in her car in a Costco parking lot in Tukwila. He had a "rape kit" -- knife, gloves and handcuffs -- along with condoms, lubricant, a douche bag and women's underwear in his car, police said.
While the Velez case is alarming, another treated sex offender, Terapon Adhahn, recently stirred outrage across Washington, prompting calls for a one-strike-you're-out-law. The Tacoma handyman is accused of graduating from incest to kidnapping, child rape and murder.
Velez and Adhahn offer glimpses into the conflicted world of sex-offender therapy. Despite inconsistent research findings on the subject, sex-offender treatment is not only a fixture in criminal justice, but also a burgeoning field, with the number of certified therapists more than doubling statewide in the last 10 years.
And while the overall climate for sex offenders has radically changed -- with longer sentences and more restrictions -- treatment has largely remained static, relying on the same cognitive-behavioral methods introduced in the 1980s.
"It's an ongoing question, there's no two ways about it," said Roxanne Lieb, director of the Washington State Institute of Public Policy, on the effectiveness of treatment. "Certainly, it's not a cure-all," she said.
Last year, Lieb's office released a study that found that Washington's prison treatment program for male sex offenders -- one of the largest in the nation -- had virtually no effect on reducing recidivism rates.
The study echoed a landmark 2005 study, in which researchers found that a California hospital program for confined sex offenders had no significant impact on curbing repeat crimes.
Both studies, however, have detractors who point to other studies showing that treatment works.
"There's pretty good evidence that if you pick out the right kind of people, who feel badly about what they've done, you can alter those patterns," Lieb said. "But if you have someone who's anti-social, who hates women or who is sexually attracted to little kids, no one knows anything about what to do about those three things."
'End goal is not a cure'
When Velez pleaded guilty to first-degree rape in 1982, he was a 19-year-old with entrenched sexual deviancies, court records show. He had peeped on neighbors as a child growing up in Tacoma. He burglarized homes to steal women's underwear.
As a teenager, he cruised for rape victims and once hid in the back seat of a woman's car, he told therapists. He had threatened the woman with scissors, but fled when she screamed and was never caught.
For the assault on the restaurant workers, which one therapist described as "brutal" and "extremely predatory," Velez received a 20-year suspended sentence. That required him to complete a now-defunct program at Western State Hospital for "sexual psychopaths."
Velez flunked out after five years. He got a second chance at treatment and flunked again, after fantasizing about raping his therapist.
He then went to prison in 1989, where he enrolled in the state's Sex Offender Treatment Program, based at the Twin Rivers Unit in the Monroe Correctional Complex.
Despite Lieb's study, prison officials are quick to defend the 200-bed, $1.8 million-a-year program. In fact, they want to expand it, with a second location in Eastern Washington.
"The study says what it says," said Sally Neiland, the treatment program's unit supervisor. "But being here every day, seeing men released, watching them graduate, hearing from them they have successful lives -- they report that wouldn't have happened without treatment."
Neiland could not discuss Velez, but said offenders in general spend about a year in treatment, learning to recognize stressors such as anger or boredom, and to change thought and behavior patterns.
Many undergo a process called "arousal reconditioning," in which a deviant fantasy is paired with a foul odor such as Limburger cheese, rotting meat or skunk urine. (Twin Rivers used to use ammonia capsules, but stopped when they learned the method can be harmful).
Offenders also learn how to manage emotions, develop social skills and empathize with victims, in part by listening to a Holocaust survivor.
"The end goal is not a cure," Neiland said. "It's to assist them in learning what situations lead them to offend and how to create intervention."
By the time Velez left prison, he had married a nurse educator he met at a hospital. He had begun attending Quaker meetings and taking classes in computer programming. He moved into his wife's rural Maple Valley home, where he did well under the terms of his two-year community supervision. It ended in 2002. The next five years are a mystery.
Velez, who is now in the Regional Justice Center jail, did not return a call for comment, nor did his wife.
"I wonder what was going on in his life, and how did he fail to use the tools that he was given?" Neiland said. "How did he unravel?"
Therapists often fooled
In Adhahn's case, treatment meant five years of court-ordered therapy after he pleaded guilty to incest for raping a teenage relative in 1990.
He fulfilled that by going to group therapy, much of it once a week, and submitting himself to polygraph and plethysmograph tests, the latter of which measures penile arousal to sexual material.
Toward the end of treatment, counselor Daniel DeWaelsche lauded Adhahn's progress.
"Terapon has demonstrated that he is using the skills and techniques, gleaned in sex-offender treatment, on a day-to-day basis to avoid recidivism," DeWaelsche wrote in 1997. "It has been a pleasure working with Terapon."
Ten years later, prosecutors say Adhahn kidnapped, raped and killed 12-year-old Zina Linnik, and raped two other girls, one of whom was abducted on her way to school.
DeWaelsche did not return a call for comment.
Experts say it's not uncommon for offenders to fool therapists, and that some people do well in treatment and deteriorate later.
Beyond that, answers become well-oiled bromides. Experts know that a subset of offenders -- psychopaths, predators and extreme deviants -- are more dangerous than others and may not do well in treatment. Of the more than a dozen violent predators released from the state's Special Commitment Center since 2001, more than half have had their releases revoked.
Experts also say most sex offenders rarely reoffend, a notation usually followed by a swift acknowledgement that all sex crimes are traumatic, no matter how rare. Then they say there are no simple answers.
More counselors are combining therapy with anti-depressants and anti-androgens, which reduce testosterone and are sometimes called "chemical castration." But anti-androgens can have severe side effects, and only a few offenders take them.
"The reality is this: Nothing beats intelligence," said Richard Packard, a clinical forensic psychologist on Bainbridge Island and past president of the Washington Association for the Treatment of Sexual Abusers.
But research and supervision are expensive, he said. "We spend no money on trying to understand how to do it better -- how to evaluate and treat sex offenders better."
Instead, many therapists find themselves cringing at the inevitable clamor that follows high-profile sex crimes.
"It's no big secret treatment doesn't work. You cannot rewire somebody's mind," said state Sen. Pam Roach, R-Auburn, a longtime supporter of tougher sentences and decreased funding for treatment.
House Republicans recently proposed GPS tracking for high-risk offenders and up to a year in prison for failing to register. Gov. Chris Gregoire has appointed a group to study the Adhahn case and propose any legislative changes by Oct. 4.
Spurred by outrage over the Adhahn charges, citizens lobbying for an improbable one-strike-you're-out law for sex offenders have rekindled their efforts.
"What is just? I'm not saying I have an answer, and I'm a psychologist," Packard said. "I mean, you do that to my kid, believe me, I'm going to be really mad."
But many sex offenders benefit from treatment, he said, and few are incarcerated forever. Then he asked the question of the ages: "So, what are we going to do about it?"
..more.. by P-I reporter Vanessa Ho can be reached at 206-448-8003 or firstname.lastname@example.org.
No one could argue that HRW has not covered issues faced by registered sex offenders in the new HRW report and I commend them for doing an excellent job.
However, since I was contacted when the research for this report began, and I did offer the HRW access, more than once, to the news articles about hundreds of cases of vigilantism and acts of violence against, persons previously convicted of sex offenses, and those who are newly accused, but for reasons unknown to this writer the HRW chose to not address those acts of violence, nor even review them. The majority of those news articles are now in blogs and indexed several ways.
Accordingly that portion of their report is severely understated, especially the portion which speaks to the maiming and murders of registered sex offenders and persons newly accused of sex offenses. Statistically this is a growing problem that is not being addressed by any legislation, nor by the Human Rights Report.
Folks will note that I have distinguished between a registered sex offender -and- a person newly accused of a sex offense. I do this because although one would consider them the same there are distinct differences in those groups.
One major difference is the number of suicides by persons newly accused of a sex offense, an extremely high number in the record that I have been keeping. At the present time I am converting my OLD RECORD of suicides to a newly created blog to be able to show other information about those cases and to separate them from murders.
HRW does cite "suicides" on page 81 of their report citing my Master List of Deaths (Suicides and Murders of sex offenders), but gives the wrong URL. They show http://www.geocities.com/eadvocate/issues/topic-pedophiles.html and it should be http://www.geocities.com/voicism/harm-master.html for the Master List.
The URL the Human Rights Report shows has to do with definitions (first created in 2002) and has been moved to The Confusing Words & Phrases in the realm of sex offenders.
These are the records of deaths that I keep:
1) The Master Listing of all deaths: CLICK
2) The blog showing the news story behind a suicide: CLICK
3) The blog showing the news story behind a murder: CLICK
Effectively the blogs are to keep the stories behind a death, whether it be a death of a registered sex offender, or a death of a person accussed of a sex offense, or the death of a person involved with a sex offender (i.e., murder-suicides and some other very odd cases).
Note: Because so many deaths have occurred compiling the news stories has been done on my home disk, and slowly I am getting them entered into the blogs for a permanent record which everyone can access. Accordingly, the blogs are not totally uptodate.
Again, I commend the Human Rights Watch for covering the topic of registered sex offenders. I do wish they would have covered sex offenders as a class with special needs, even though law today does not recognize sex offenders as a class. Registrants are likened to folks who suffer "Hate Crimes" which the government does keep special statistics of.
Special needs due to the laws forcing them to register and causing the harm they suffer today. Politicians claim regulation of a group with a high recidivism rate and refuse to recognize the fallacy of their claim as to former sex offenders. That political claim places former sex offenders in a false light before the public eye.
With that said on to the HRW report:
Human Rights Watch:
The reality is that sex offenders are a great political target, but that doesn’t mean any law under the sun is appropriate.
—Illinois State Representative John Fritchey1
People want a silver bullet that will protect their children, [but] there is no silver bullet. There is no simple cure to the very complex problem of sexual violence.
—Patty Wetterling, child safety advocate whose son was abducted in 1989 and remains missing2
What happened to nine-year-old Jessica Lunsford is every parent’s worst nightmare. In February 2005 she was abducted from her home in Florida, raped, and buried alive by a stranger, a next-door neighbor who had been twice convicted of molesting children. Over the past decade, several horrific crimes like Jessica’s murder have captured massive media attention and fueled widespread fears that children are at high risk of assault by repeat sex offenders. Politicians have responded with a series of laws, including the sex offender registration, community notification, and residency restriction laws that are the subject of this report.
Federal law and the laws of all 50 states now require adults and some juveniles convicted of specified crimes that involve sexual conduct to register with law enforcement—regardless of whether the crimes involved children. So-called “Megan’s Laws” establish public access to registry information, primarily by mandating the creation of online registries that provide a former offender’s criminal history, current photograph, current address, and other information such as place of employment. In many states everyone who is required to register is included on the online registry. A growing number of states and municipalities have also prohibited registered offenders from living within a designated distance (typically 500 to 2,500 feet) of places where children gather—for example, schools, playgrounds, and daycare centers.
Human Rights Watch appreciates the sense of concern and urgency that has prompted these laws. They reflect a deep public yearning for safety in a world that seems increasingly threatening. Every child has the right to live free from violence and sexual abuse. Promoting public safety by holding offenders accountable and by instituting effective crime prevention measures is a core governmental obligation.
Unfortunately, our research reveals that sex offender registration, community notification, and residency restriction laws are ill-considered, poorly crafted, and may cause more harm than good:
The registration laws are overbroad in scope and overlong in duration, requiring people to register who pose no safety risk;
Under community notification laws, anyone anywhere can access online sex offender registries for purposes that may have nothing to do with public safety. Harassment of and violence against registrants have been the predictable result;
In many cases, residency restrictions have the effect of banishing registrants from entire urban areas and forcing them to live far from their homes and families.
The evidence is overwhelming, as detailed in this report, that these laws cause great harm to the people subject to them. On the other hand, proponents of these laws are not able to point to convincing evidence of public safety gains from them. Even assuming some public safety benefit, however, the laws can be reformed to reduce their adverse effects without compromising that benefit. Registration laws should be narrowed in scope and duration. Publicly accessible online registries should be eliminated, and community notification should be accomplished solely by law enforcement officials. Blanket residency restrictions should be abolished.
For access to the full report: CLICK by the Human Rights Watch
Her profile said she was 18, your honor!
Age is just a number, right?
It is for hookup websites, according to a judge from the United States District Court for the Northern District of Ohio.
SexSearch.com is a website that encourages its users to arrange sexual encounters using its services. Members create profiles that are populated by information provided in a registration form, including the members' ages, and then they can browse other profiles and chat with other users.
An anonymous plaintiff, John Doe, sued SexSearch after he met a fellow user, Jane Roe, whose profile stated that she was born on June 15, 1987, which would have made her 18 at the time. Her profile also contained an authentic picture of her, and a statement that her ideal man was one with some staying power. Sounds great, right?
Well, the two soon met up at her house and consummated their internet flirtation, and that's where John Doe's troubles began.
After his house was surrounded by police and he was arrested, the plaintiff learned that Jane Roe was actually a 14 year-old girl. He was charged with felony statutory rape, which could ultimately result in a fifteen-year prison term and lifetime classification as a sex offender. Ouch.
Doe decided to sue SexSearch, and alleged numerous legal transgressions by the site, including fraud, negligent misrepresentation and breach of warranty. The court boiled Doe's charges down to two major themes: 1) "[d]efendants failed to discover Jane Roe lied about her age to join the website," and 2) "the contract terms are unconscionable."
SexSearch argued that Section 230 of the Communications Decency Act (ironic, no?) shielded it from liability for Doe's claims. Section 230 blocks suits against interactive computer services based on their publication of information provided by a third party.
Doe countered that SexSearch reserved the right to modify profiles that didn't meet the guidelines in place for profiles on the site, thus SexSearch was an information content provider and unable to benefit from Section 230's immunity clause.
The judge in the case sided with the defendant, granting SexSearch's motion to dismiss the case in a ruling entered last week.
The judge rejected Doe's arguments that SexSearch was an information content provider because it reserved the right to revise profiles, pointing out that sites are only liable when they modify the specific information relating to a plaintiff's claims. Since the plaintiff here never argued that SexSearch modified Jane Roe's profile, the judge held that Section 230 applied to block the suit.
The decision completely ignored the recent Ninth Circuit Roommates.com opinion that stripped a roommate-search social network of its Section 230 immunity based on its practice of guiding roommate-seekers to certain profiles based on information provided during the registration process. The court ruled that this channeling created an additional layer of information that qualified the site as an information content provider.
That situation seems largely analogous to the current case, yet the court didn't give it a single mention. There could be a number of reasons for this: a) the plaintiff didn't bring it up in his arguments to the court; b) the decision isn't binding precedent on this district court, since it lies within the 6th Circuit; c) the judge, like nearly everyone else, thinks the 9th Circuit's decision was crap; or d) all of the above.
Instead of following the 9th Circuit down the rabbit hole, the judge's ruling more closely tracked the Doe v. Myspace decision out of Texas that exonerated the popular social network against claims of negligence following the sexual assault of a minor by a man she met through MySpace.
Not only did the courts both find that Section 230 applied, but they also found that it protected the sites against charges other than the usual claims of defamation - breach of contract and fraud for SexSearch, and negligence for MySpace.
The court here went even further for SexSearch, and also ruled that Doe's claims failed on the merits. That is, even without the Section 230 immunity, Doe hadn't stated a case that had any legal possibility of success.
While Doe may be out of luck, the ruling is good news for social sex networks and dating sites. But it may also turn out to be bad for the users of those services.
With no impetus for the sites to weed out age cheats, the possibility that more John Does out there could find themselves surrounded by cops one morning only increases.
Of course, as the judge here pointed out, Doe did have ample opportunity to verify Roe's age before having sex with her.
And considering that she was barely out of middle school and he was meeting her at her family home, that probably would have been wise. ..more.. Kevin Fayle
September 10, 2007
It all seems so terribly familiar.
A trusted, even respected or beloved teacher is accused of having a sexual relationship with a student.
What used to shock us, but is now much too commonplace, is that the teacher is a woman.
Their names become tabloid headlines: Mary K. Letourneau, Debra Lafave, Pamela Diehl-Moore and others.
And now two more cases, both local.
Jennifer Leigh Rice, a 31-year-old former Tacoma teacher, was charged with having sex with a 10-year-old boy who had been in her fourth-grade class. The boy's father says she lavished the boy with attention until she was told not to come to their house anymore.
So she abducted the boy, police say, drove him to a highway rest stop outside Ellensburg and had sex with him. After her arrest in early August, Rice said she'd had sex with the boy four or five times, including once when she sneaked into his house as his parents slept.
Earlier this year, former Tenino math teacher Dawn Welter, 38, was charged with second-degree sexual misconduct after spending the night at a motel with a 16-year-old female student. Her lawyer explained her relationship with the student as "horseplay that became sexual."
The decadelong wave of sexual offenses committed by women — teachers in particular have exposed a cultural double standard: The public is more willing to accept the female abuser's claim that she had a "relationship" with the victim. And in cases in which the male is a teenager, the sexual abuse is more likely to be dismissed as a rite of passage. The questionable, yet overriding assumption, is that women predators are somehow different from men.
"Men are demonized, women are diagnosed. Men are beasts, but women are troubled or mentally ill," said media scholar Matthew Felling in an interview with Fox News. In fact, accounts of women sexual offenders are often more titillating than harsh. Felling calls the news coverage of young, attractive teachers involved with their students "part crime drama, part Penthouse letter."
About 25 percent of women and up to 17 percent of men say they experienced sexual abuse as children, ranging from seeing someone exposing themselves to intercourse. Boys are less likely to report abuse.
Despite the troubling news accounts, the National Education Association says schools are still among the safest places for children to be. The number of cases of sexual abuse by teachers, male and female, is less than 10 percent of all sex crimes against minors.
The current awareness of women predators began with Mary K. Letourneau, a 34-year-old elementary-school teacher and a married mother of four, who in 1996 began a sexual relationship with a 12-year-old former student, Vili Fualaau. Letourneau eventually had two children with him and served more than seven years in prison. She resumed contact with Fualaau, by then an adult, after she was released. While a male offender might have been publicly shunned, Letourneau's 2005 wedding to Fualaau was covered by "Entertainment Tonight."
Female predators' crimes are often attributed to marital problems, depression, loneliness, immaturity or self-esteem issues. Letourneau was reported to have "a loveless marriage" and was diagnosed with bipolar disorder.
Not only do we look at female offenders differently, so do the offenders themselves. Women predators are more likely to see the abuse as a romantic relationship. Letourneau told CNN's Larry King that she and Fualaau had a "deep spiritual oneness" before they were ever sexual, and that she did not consider herself a sexual predator.
Dr. Leigh Baker, a clinical psychologist in Colorado, interviewed hundreds of male and female predators for her book "Protecting Your Children From Sexual Predators." All were incarcerated at the time, and their stories help form her theory that there are four types of predators: inadequate, narcissistic, anti-social and pedophile.
An inadequate adult (and predator) has trouble forming attachments with other adults and is most comfortable with children, she says. A narcissist loves him- or herself to the detriment of others; someone who's anti-social doesn't abide by society's rules; and a pedophile is sexually aroused by children.
While some women are pedophiles and some men do profess their love for the children they sexually abuse, women are more likely to "couch it as a relationship," according to Baker. Men are more likely to be serial pedophiles; women seek that "deep spiritual oneness" that Letourneau says she found.
The traits women predators exhibit — seeing themselves as a victim, low self-esteem, a sense of inadequacy, needing to be the center of attention, putting their own need for a connection before common sense — probably place most women predators into two of Baker's four categories.
"My suspicion is if you took a large enough number of female predators, they would fall into all four types. But, we know women are less anti-social than men, and there are fewer female pedophiles, so I think most women are narcissistic or inadequate types of predators."
There are signs of the inadequate, the narcissist and the anti-social predator in Letourneau. She formed an inappropriate bond with a 12-year old, ignoring society's mores and the well-being of her own four children.
While a mental illness may produce hypersexuality, impulsiveness and poor decision-making, such a diagnosis for a sexual predator is rare, according to Baker. They are more likely to have a personality disorder (such as a anti-social, or narcissistic) or to have been sexually abused themselves.
The "Mrs. Robinson Syndrome"
To watch NBC's "To Catch A Predator" you'd think all predators are men. The series uses decoys on the Internet to lure men hoping to hook up with underage teens. Robert Weiss, executive director and founder of the Sexual Recovery Institute in Los Angeles, who provided his expertise in one of the episodes, says sexual compulsions on the Internet are male-dominated.
But female predators are beginning to use the Internet — not in an anonymous way to find children but to stay in close touch with those they are involved with. Rice, the former Tacoma teacher, communicated online often with the 10-year-old she had sex with, according to court records.
Then there is the ultimate double standard: The wink wink, nudge nudge, of boys getting their sexual initiation from grown women.
"Society sees it as they got 'lucky' " to receive a sexual initiation from a woman, according to Dr. Keith Kaufman, chairman of the department of psychology at Portland State University. "But their brain maturation isn't complete. Boys aren't in a position to give consent to a sexual relationship. Girls see it as abusive much more quickly. Boys won't want to see themselves as a victim."
There is a prevailing sense that boys are not harmed by sexual liaisons with older women. It's called the "Mrs. Robinson Syndrome," after the character in the 1967 film "The Graduate." But Benjamin, Mrs. Robinson's target, wasn't a child; he was in his 20s, had just graduated from college and was contemplating that career in plastics.
"We tend to see the female teacher-male student relationship as less abusive and less harmful psychologically," according to Dr. Susan G. Kornstein, a psychiatrist and director of the Institute for Women's Health and the Mood Disorders Institute at Virginia Commonwealth University. "But in fact, a sexual relationship between a female teacher and a male student can be just as harmful and can have both short- and long-term consequences on the child's emotional stability and psychological and sexual development."
Boys who have sex with grown women are anything but "lucky." "It is always abuse," says Dr. Kaufman. ..more.. by Rebecca Morris, Special to The Seattle Times
Rebecca Morris has been a broadcast and print journalist for 33 years. She teaches journalism at Bellevue Community College.
September 9, 2007
September 8, 2007
September 7, 2007
This is one of the worst examples of a recidivism study that I have ever seen, absolutely full of superfluous and data designed to bloat the study. Usually when this is the case it is done to cover up some truth, and it took some doing to find out what that was. The true sex offender recidivism rate is very low 5.5% over three years and contradicts what the study claims. How can that be?
To understand you must review definitions found in the "Glossary" at the end of their study, relevant to my discussion are:
Arrest - The apprehension of a person who is charged with having committed a crime
Recidivism – A return to criminal habits, including persons recommitted for a new offense or for a technical violation. Recidivism does not include persons who have been rearrested.
Recommit – To return to jail or DOC after being released, due to a new offense or technical offense.
Recommitment Offense – A new offense in which an offender is sent back into the criminal justice system after being released for a period of time.
Technical Violation – Failure to comply with the conditions of supervised release from incarceration.
Start with "recidivism," -meaning a return to criminal habits-, but it includes -technical violations- which are not criminal acts. Then look close at "recommit," which means -return to jail or prison- for a new offense or a technical violation. By including technical violations they are able to show HIGHER RECIDIVISM rates than there really are.
Technical violations are not shown anywhere, as a separate number, in this study. That is a clear signal that they do not want the truth known. The truth being "recidivism" as meaning a true return to criminal behavior. Why?
There is a clue to the truth in the "Comparison Summary" on page 3.
Notice these numbers:
Recommit with a Similar Offense................20
Recommit with a Similar / Lessor Offense....4
Recommit with a Similar / Higher Offense....4
The last three (20+4+4) are actual crimes committed by sex offenders, not technical violations. Accordingly, 142-28=114 Technical Violations. So, out of 506 sex offenders released 28 committed further crimes, that means the true recidivism rate is 5.5%. (Note: Given they are using "same or similar, lessor and higher" in describing the crimes, it means 5.5% pertains to -all kinds of crimes- not just sex offenses.)
In this writer's opinion a recidivism rate of 5.5% clearly brings into question all the legislation and tracking costs for sex offenders when zero is spent on offenders who have demonstrated much higher recidivism rates. Does that answer why?
For the die heart readers who want the words as spewed by the Tennessee Bureau of Investigation, Crime Statistics Unit, what follows is in their words. They agree that sex offenders' recidivism rates are lower than nonsex offenders, so the only question is, how much lower? Now you have my opinion!
Purpose of the Study:
The (TSAC) was one of eleven state SAC’s chosen to participate in a multi-state study. The study focused on all male sex offenders who were released from incarceration during calendar year 2001. The offenders were tracked for three years after their release to determine the recidivism rate of the group. A stratified sample based on primary incarceration offense of non-sex offenders released was also tracked for three years as a comparison. State and national criminal histories were generated for both groups of offenders. Additionally, data was obtained from the Tennessee Department of Correction’s Tennessee Offender Management Information System (TOMIS) to identify offenders recommitted for technical violations of supervised release.
Description of the Study:
A database was obtained from the Tennessee Department of Correction that contained all felony offenders released from Tennessee jails and prisons during the year of 2001. All sex offenders were studied and a stratified sample was generated of released offenders with other offenses. For both studies only male subjects were tracked. The offenders studied were released from prison or jail to parole, probation, community corrections, or released after the expiration of their sentence. The study did not include offenders who were initially sentenced to community correction or probation without serving a period of incarceration.
Recidivism is defined as the return to criminal habits, including recommitment for new offenses or a technical violation of supervised release. To determine the rate of recidivism, the records of 557 Sex Offenders were examined for a three year period following the date of their release from custody. A stratified sample of 559 male felons based on proportion of the offense group within all releases was studied for comparison purposes.
The study includes information on offenders who were rearrested and recommitted as well as those who had no further known contact with the criminal justice system. For the purpose of this study "recommitted" was defined as offenders who were committed for a new conviction or recommitted as a result of a technical violation of the rules of their supervision within three years of their release from incarceration. “Rearrested” was defined as offenders who were arrested for a new offense, but were not recommitted within three years following the date of their release. Recommitment and rearrest information was obtained from the Tennessee Offender Management Information System (TOMIS) of the Tennessee Department of Correction and from criminal history information obtained from the National Crime Information Center (NCIC) and the Tennessee Criminal History System (TCHS). The recommitment and rearrest may have occurred in Tennessee or in any other jurisdiction and are noted if the arrest occurred outside Tennessee.
For the purpose of this study, technical violations were counted for those offenders who did not commit a new offense and were only committed for a technical violation of supervision the three year period. If the offender returned on a technical violation because of a new offense conviction the new sentence would have been counted and the technical violation would have been disregarded.
Of the 557 Sex Offenders released in 2001:
The study included all males with the following racial breakout: 318 - White, 188-Black
The following released offenders were excluded from the study: 12 females; one offender released to federal detainer before being deported; 9 offenders who died of natural causes; 1 who was a homicide victim; 15 offenders released to detainer; and 13 offenders released to Court / Administrative Discharge. The remaining 506 offenders were tracked for three years.
223 Offenders (44.1%) had no known contact with the criminal justice system.
141 (27.9%) Offenders were arrested one time but were not readmitted in the TDOC prison system.
142 (28.1%) Offenders were recommitted into the TDOC prison system. The most frequent recommitment type was Crimes Against Society violations with 41 offenses (28.9%).
Arrest offense types that were similar to the offense resulting in the original incarceration and release in 2001 were ranked as similar, lesser or higher. 20 offenses were similar, 4 were lesser and 4 were higher.
Average number of days between release and readmission to the TDOC prison system was 460 days.
Average age at readmission was 38.
Average number of offenses committed by those readmitted was 2.8.
Average number of days between release date and arrest date was 375 days.
Average age of single arrest category was 32.
22 (7.8%) offenders were rearrested and 31 (11.0%) recommitted between zero and six months of their release.
50 (17.7%) offenders were rearrested and 27 (9.5%) recommitted between six months and one year of their release.
46 (16.3%) offenders were rearrested and 48 (17.0%) recommitted between one and two years of their release.
24 (8.5%) offenders were rearrested and 35 (12.4%) recommitted between two and three years of their release.
Sex offenders with the highest rearrest rates were statutory rapists (30.7%), offenders who committed sexual battery (17.9%) and rapists (15.0%).
Sex offenders with the lowest rearrest rate were those in prison for attempted rape of a child (0.0%), criminal exposure to HIV (0.0%), criminal sexual conduct–1st degree (0.0%) and incest (0.0%).
Within 3 years, 3.5% of released rapists were rearrested for another rape, and 4.7% of released statutory rapists were rearrested for another statutory rape.
A total of 18 sex offenders crossed state lines and were either rearrested or recommitted. Of that number, 16 were arrested with no incarceration while 2 were incarcerated in Georgia. Five (5) bordering states showed arrests of Tennessee sex offenders with Oregon being the greatest distance traveled. The incarceration offenses in Georgia were failure to register as a sex offender and indecent exposure.
Race: whites were more likely than blacks to be –
o Recommitted (51.4% verses 48.5%)
o Rearrested without incarceration (55.3% verses 44.7%)
o Neither recommitted or arrested (70.1% verses 29.5%)
Offenders released due to death, detainer and administrative / court release were noted in the appendix but were not included in the analysis.
..more.. by Tennessee Bureau of Investigation, Crime Statistics Unit
Understanding Sexual Victimization: Using Medical Provider Data to Describe the Nature and Context of Sexual Crime in Massachusetts
This report presents findings related to many aspects of the nature and context of sexual crime in Massachusetts. The following are highlights of these findings.
· Victims of sexual violence tended to be young (the average victim age was 24 years) and female (96% of victims were female).
· Almost all offenders were male (98%) and nearly two-thirds (62%) were known to thevictim.
· As victim age increased, so did the proportion of crimes committed by strangers.
· Victims under the age of 10 were most likely to be victimized by family members (41%)and were least likely to be victimized by strangers (6%).
· Very few victims had restraining orders in place before the assault (1.5%) or after the assault (5.2%).
· Cities experienced a disproportionate share of sexual crime relative to their population. However, the disproportion is smaller for sexual crimes than for other violent crimes - the percent of sexual crime in Massachusetts 10 largest cities as reported in the PSCR (42%) was less than other violent crimes (52% for aggravated assault, 66% for robbery, and 67% for murder/non-negligent manslaughter).
· Sexual crimes impacted more communities than other types of violent crimes. In 2004, 173 cities reported at least one sexual crime compared to 40 communities reporting at least one murder, 137 reporting at least one aggravated assault, and 140 reporting at least one robbery.
· The majority of assaults occurred in a house or apartment (60%).
· 45% of victims sought medical treatment within 12 hours of the assault, 70% sought treatment within 24 hours, and 97% sought treatment within 5 days (120 hours).
· Verbal threats and use of body weight / holding down were the most commonly reported types of force used by the offender (25% and 21% respectively). The use of knives (6%), guns (3%), and blunt objects (2%) was relatively uncommon.
· Victims assaulted by a date, friend, or acquaintance were least likely to report the crime to the police. Victims assaulted by a parent..s live-in partner, spouse, or ex-spouse were most likely to report the crime to the police.
· For victims under the age of 18, 51A child abuse reports were filed in only 43% of cases.
Victimization surveys, police reports, public health surveys, and rape crisis center data all contribute to a better understanding of the incidence and prevalence of sexual assault and rape, but no single source of information can provide a complete and comprehensive picture. Several of these sources of information contain limited information on the specific nature and context of sexual assaults and do not address many important questions. For example, what are the most common victim-offender relationships? Does reporting to the police vary by relationship to the offender? What types of force are most frequently used against victims during an assault? Understanding the answers to these and other questions can help further the state of knowledge about contextual aspects of
sexual assault in Massachusetts.
Under Massachusetts law, all medical professionals who examine a victim of sexual assault or rape are required to fill out a Provider Sexual Crime Report and forward the report to the Massachusetts Executive Office of Public Safety (EOPS), where each case is stored electronically (see Appendix for a sample report).
This report presents information on sexual victimizations in the Commonwealth of Massachusetts based on an analysis of Provider Sexual Crime Reports data. A total of 4,066 cases covering the period 2001 through 2004 were reported to EOPS, where each case equates to one incident of sexual crime.
The results presented in this report should not be considered a representative sample of sexual assault in Massachusetts, but merely a reflection of the cases in which a victim sought medical attention and a medical professional forwarded the information to the EOPS. (For more information on the dataset see Data Overview section.) This report does not present information on the incidence or prevalence of sexual victimization in Massachusetts, as the PSCR does not capture crimes of rape or sexual assault where the victim did not seek medical attention, regardless of whether they reported the crime to the police.
Regarding the organization of this report, information on sexual victimization from both a national level and a state level is presented first to provide an overall context. Next, the report provides background on the PSCR and an overview of the dataset. Finally, analyses are presented into four sections:
· Victim characteristics, such as the age, gender, and race of the victim,
· Offender characteristics, such as the gender of the assailant, the relationship (if any) between the offender and victim, and the number of offenders,
· Nature and specifics of the crime, including the city of the assault, the time of assault, the surroundings at the time of the assault, and the types of force used by the offender, and
· Reporting the crime, such as the percent of crimes resulting in a police report, child abuse report, elder abuse report, disabled persons report, or weapon report. ..more.. by Report prepared by: Massachusetts Executive Office of Public Safety (EOPS), Research and Policy Analysis Division: Robert Fallon, Policy Analyst, Sarah Lawrence, Director of Research, Shelley Penman, Data Coordinator
September 6, 2007
September 5, 2007
Case 5:06-cv-00096-JG Document 47 Filed 09/04/2007 Page 1 of 22
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO
SHERRI BEVAN WALSH, ETC., ET AL.
CASE NO. 5:06-CV-96
FINDINGS OF FACT AND CONCLUSIONS OF LAW GRANTING JUDGMENT FOR PLAINTIFF
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On January 17, 2006, Plaintiff Lane Mikaloff sued Defendant Sherri Bevan Walsh, Summit County Prosecutor and Defendant Douglas J. Powley, Akron Chief City Prosecutor, in their official capacities under 42 U.S.C. § 1983. With this Section 1983 action, Mikaloff seeks to enjoin enforcement against himself of Ohio Revised Code Section 2950.34,1/ a law that prohibits sex offenders from residing within 1,000 feet of a school. In support of this action, Mikaloff says Section 2950.34 is unconstitutional as an ex post facto law if applied against him. This Court concludes that the residency restriction is an unconstitutional ex post facto law, enters judgment against the defendant, and enjoins the defendant from enforcing the law as against Mikaloff.
Ohio's residency restriction was re-codified from 2950.031 to 2950.037 subsequent to trial. 2007 Ohio SB 10. The Court will refer to the restriction at its present place in the code. The re-codification within the same Chapter of the Code does not change the Court's analysis.
As an initial matter, "When seeking declaratory or injunctive relief, the plaintiff must demonstrate actual present harm or a significant possibility of future harm to justify pre-enforcement relief." Peoples Rights Org. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. ). That said, "an individual does not have to await the consummation of threatened injury to obtain preventive relief. Rather, if the injury is certainly impending, that is sufficient." Id. citing Babbitt v. United Farm Workers Union, 442 U.S. 289, 298 (1979). Typically, Courts engage in pre-enforcement review under the Declaratory Judgment Act when a statute imposes costly, self-executing compliance burdens. Nat7 Rifle Ass 'n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997). A case is ripe for review "only if the probability of the future event occurring is substantial and of 'sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Nat 'l Rifle Ass 'n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997).
The Court finds this is a case or controversy within the meaning of Article III. While Defendant has filed no action against Plaintiff, Defendant Walsh has indicated she awaits the outcome of this litigation before she will begin enforcement of O.R.C. § 2950.034 against Plaintiff Mikaloff. He has received a letter stating the Defendant will bring an injunction action against him if he does not move. Plaintiff’s injury, therefore, is "certainly impending" and of 'sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" See Peoples Rights Org., 152 F.3d at 527; NRA of Am. v. Magaw, 132 F.3d at 284.
II. Findings Of Fact
This case stems from Ohio's imposition of residency restrictions on Mikaloff after he was sentenced and completed that sentence. In January 1987, Plaintiff Mikaloff pled guilty to three counts of rape, five counts of aggravated burglary four counts of aggravated robbery, one count of
robbery, and one count of felonious assault. [Tr. 67, 18]. The convictions resulted from a series of burglaries that Mikaloff committed with co-defendants in October 1986 and at a time that he was about 18 years old. [Tr. 18]. Regarding the rape convictions, Mikaloff raped an adult woman during a burglary he committed near October 1986. Arrested shortly after the rape, Mikaloff pled guilty and received a sentence of 16 - 53 years for the rape and related offenses. [Tr. 20]. At the time he pled guilty, Mikaloff was not informed that the rape conviction would foreclose him from residing at his family home. Nothing in the sentencing entry said anything regarding limitations upon where Mikaloff could reside.
On November 1, 2002, and after having been incarcerated for about 16 years, Ohio paroled Mikaloff to his family home at 1174 V2 Beardsley Street, Akron, Ohio. [Tr. 29-30]. Mikaloff successfully completed parole in December 2004. [Tr. 33]. Plaintiff lives in a guest house on the back of the property. [Tr. 14]. The house has two small bedrooms, a kitchen dining area, and a bathroom.
Plaintiff Mikaloff s mother owns the property and she allows Mikaloff, his life-partner, Mary Moffit, and their two children to live at the Beardsley Street residence rent-free. [Tr. 14, 36]. Mikaloff s family has owned the home for more than half a century. [Tr. 15]. Apparently because of smaller size of 1174 V2 Beardsley, Moffit and the children often sleep in the main house at 1174 Beardsley, but Plaintiff Mikaloff sleeps in the smaller guest house. [Tr. 17].
Plaintiff Mikaloff and his family face a difficult financial situation. Because of his past convictions, Mikaloff Plaintiff faces difficulty obtaining work. [Tr. 39, 59-61]. Plaintiff Mikaloff hopes to start a painting business but has not found the capital for start-up costs. [Tr. 39-40, 61].
In December 2005, the Summit County Sheriff sent Mikaloff a letter telling Mikaloff that his residence was within 1000 feet of McBright Elementary School and requiring Plaintiff to move by January 1, 2006. [Tr. 35]. Otherwise, the Sheriff would seek an order forcing Mikaloff to move. Id. Because of his limited financial resources, Plaintiff Mikaloff likely would be unable to rent another residence and would be separated from his partner and children if he is ordered to leave his home. [Tr. 41].
Section 2950.031, which became effective on July 31, 2003, prohibits sex offenders, like Mikaloff from residing within 1000 feet of school premises. After an amendment that became effective April 29, 2005, prosecutors can seek injunctive relief to require sex offenders to leave their homes within 1000 feet of schools. The Ohio General Assembly has recodified former Section 2950.031 as O.R.C. § 2950.034. Section 2950.034, thus, became effective long after Mikaloff s 1987 conviction.
B. The Ohio Law
Ohio Revised Code § 2950.034 provides:
(A) No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises or preschool or child day-care center premises.
(B) If a person to whom division (A) of this section applies violates division (A) of this section by establishing a residence or occupying residential premises within one thousand feet of any school premises or preschool or child day-care center premises, an owner or lessee of real property that is located within one thousand feet of those school premises or preschool or child day-care center premises, or the prosecuting attorney, village solicitor, city or township director of law, similar chief legal officer of a municipal corporation or township, or official designated as a prosecutor in a municipal corporation that has jurisdiction over the place at which the person establishes the residence or occupies the residential premises in question, has a cause of action for injunctive relief against the person. The plaintiff shall not be required to prove irreparable harm in order to obtain the relief.
Section 2950.034 contains no exception or "Grandfather Clause" exempting sex offenders who were convicted before Section 2950.034 became effective, or who owned their homes before its effective date, nor is there any exemption for sex offenders who established his or her residence in compliance with the statute before a school or day care center moves within 1000 feet of him or her.
III. Conclusions Of Law
Plaintiff Mikaloff asks this Court to find that O.R.C. § 2950.034 violates the Constitution's Ex Post Facto Clause because it is punitive and the Ohio General Assembly enacted it long after he had been convicted and after he had served his sentence. He asks the Court to enjoin its enforcement, as against him. In support of his claim that O.R.C. § 2950.034 is an ex post facto law, Mikaloff argues that the Ohio General Assembly intended to impose punishment with O.R.C. § 2950.034. Alternatively, he says O.R.C. § 2950.034 is so punitive in effect that any innocent legislative intent does not save it.
Regarding his claim that O.R.C. § 2950.034 is punitive in effect, Mikaloff argues the statute is punitive because (a) it restricts where offenders can live in a manner similar to probation and parole, prototypical punishments; and (b) applies for the offender's life, irrespective of whether Ohio shows that Mikaloff poses a continuing threat. After considering the parties arguments, the Court concludes that the residency restriction violates the Constitution's Ex Post Facto Clause. A.
Standards of Review
In this case, Plaintiff Mikaloff seeks a declaratory judgment and injunctive relief. Courts considers five factors in determining whether a declaratory judgment is appropriate:
(1) whether the judgment would settle the controversy;
(2) whether the declaratory judgment action would serve a useful purpose in clarifying the legal relations at issue;
(3) whether the declaratory remedy is being used merely for the purpose of "procedural fencing" or "to provide an arena for a race for res judicata";
(4) whether the use of a declaratory action would increase the friction
between our federal and state courts and improperly encroach on state
(5) whether there is an alternative remedy that is better or more
Bituminous Casulty Corp. v. J & L Lumber Co., 373 F.3d 807, 813 (6th Cir. 2004).
Where a plaintiff establishes a constitutional violation after a trial on the merits, the Plaintiff should receive a permanent injunction if (1) she or he has shown a continuing irreparable injury if the court fails to issue the injunction, and (2) the lack of an adequate remedy at law. Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)
The Ex Post Facto Clause of the Federal Constitution "forbids the Congress and the States to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Weaver v. Graham, 450 U.S. 24, 29 (1981), quoting Cummings v. Missouri, 4 Wall. 277, 325-326 (1867). The Clause seeks to require fair warning that certain conduct could lead to punishment and to restrain potentially vindictive legislation. Id. It includes laws that enhance criminal penalties: "The heart of the Ex Post Facto Clause, U.S. Const., Art. I, § 9, bars application of a law "that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed ...." Johnson v. United States, 529 U.S. 694, 700 (2000), quoting Calder v. Bull, 3 U.S. 386, 397 (1798) ("The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty; and therefore they may be classed together."). "To fall within the ex post facto prohibition, two elements must be present: (1) the law must apply to events occurring before its enactment, and (2) it must disadvantage the offender affected by it." United States v. Abbington, 144 F.3d 1003, 1005 (6th Cir. 1998), quoting United States v. Reese, 71 F.3d 582, 585 (6th Cir. 1995).
However, the Ex Post Facto Clause is not necessarily implicated when a retroactively applicable statute "produces some ambiguous sort of 'disadvantage,' . . . but . . . whether [it] . . . increases the penalty by which a crime is punishable." California Department of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The key issue in this case is whether or not the Act is punitive, because only punitive statutes implicate the Ex Post Facto Clause.
Deciding whether a statute imposes punishment involves a two-step inquiry. First, the Court considers whether the Ohio General Assembly "indicated either expressly or impliedly a preference for one label [punitive or civil] or the other." United States v. Ward, 448 U.S. 242, 248 (1980). If the Ohio General Assembly indicates, either expressly or impliedly that the legislature's intent was punitive, then the inquiry ends, and the statute is subject to the ex post facto prohibition. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963).
If the Ohio General Assembly did not intend the statute to be punitive, or its intent is ambiguous, then the Court decides whether the statute is "so punitive either in purpose or effect" that it should be considered to constitute punishment. Ward, 448 U.S. at 249. This two-step inquiry is known as the "intent-effects."
If the legislature intended the scheme to be civil, “‘only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Hudson v. United States, 522 U.S. 93, 100 (1997). If the intent of the legislature is unclear, however, that "does not justify requiring the 'clearest proof’ of penal substance." Smith v. Doe, 538 U.S. at 110 (Souter, J., concurring in judgment).
To determine whether the statutory scheme is so punitive in effect as to negate a state's intent to deem it civil, the Court considers five factors listed in Doe: "whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a non-punitive purpose; or is excessive with respect to this purpose." Id. at 96 (majority opinion). These factors are "neither exhaustive nor dispositive." United States v. Ward, 448 U.S. 242, 249 (1980)
B. Legislative Intent
Whether a statutory scheme is civil or criminal "is first of all a question of statutory construction." Hendricks, 521 U.S. at 361. The Court "must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Hudson, 522 U.S. 93, 99 (1997). To determine whether the legislature impliedly indicated its intent, the Court will consider the other attributes the Supreme Court noted in Doe, including the manner of the law's codification or the enforcement procedures it establishes. See Doe, 538 U.S. at 94.
The Court finds that the Ohio General Assembly intended the residency restriction to be penal. There are, however, arguments on both sides. For that reason, the Court considers the law to be somewhat ambiguous. The Court will first consider the law's lack of expressed purpose. The Court will then discuss the law's implied purpose, considering the law's codification in the criminal code and specifically Chapter 2950. The Court will also discuss the law's enforcement procedures, both in terms of the prosecutors who enforce the residency restriction and the injunction remedy.
Finally, the Court will consider other courts' construction of the law's purpose.
1. The Ohio Law 's Expressed Purpose
The Ohio General Assembly did not expressly indicate whether the residency restriction is criminal or civil. Defendants argue that Section 9 of Senate Bill 5, an uncodified section of the bill that enacted the residency restriction, shows the legislature's intent that O.R.C. § 2950.34 is civil. The language states:
SECTION 9. This act is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety. The reason for such necessity is that it is crucial for this state to make the changes in this act as soon as possible, in order to expand the protections and information afforded residents of this state regarding offenders who commit sexually oriented offenses or child-victim oriented offenses and in order to comply with the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act and standards adopted under that Act and receive related federal funding that is contingent upon compliance. Therefore, this act shall go into immediate effect.
Initially, this language suggests the bill is civil, and for "the immediate preservation of the public peace, health, and safety." But a closer look quickly reveals this is not the case. The language is intended to address the effective date of the law, not the general intent of the law. The Court further notes that Senate Bill 5 included provisions defining certain acts as crimes. See, e.g., 2003 Legis. Serv. Ann. 29 at 42-43 (codified at O.R.C. § 2907.07); Id. at 43 (codified at O.R.C. § 2919.24). It also includes certain sentencing provisions. Id. at 48-54 (codified at O.R.C. § 2929.13); Id. at 54-58 (codified at O.R.C. § 2929.19); Id. at 5 8-60 (codified at O.R.C. § 2929.21). The entire bill, to which Section 9 applies, cannot be civil when it includes such provisions. For those two reasons, Section 9 does not designate the bill, or the provisions within it, as nonpenal.
2. The Ohio Law 's Implied Purpose
a. The Law 's Codification
Ohio codified the residency restriction in Section 2950.034 in Ohio's criminal code. Where a legislature chooses to codify a statute suggests its intent. Hendricks, 521 U.S. at 361. A statute's codification, however, is not dispositive. Doe, 538 U.S. at 94; see also United States v. One Assortment of 89 Firearms, 465 U.S. 354,364-65 (1984) (holding a forfeiture provision civil despite its being in the criminal code). In Doe, for instance, placement in the criminal procedure code did not negate the legislature's expressed purpose to create a civil law. Doe, 538 U.S. at 94. This case stands in contrast. The legislature did not express a purpose to create a civil law. The Ohio General Assembly's failure to identify the residency restrictions found in O.R.C. § 2950.034 as civil and its decision to include the provisioni in its criminal chapter gives some suggestion that the residency restriction was intended to be punitive. See, Hendricks. 521 U.S. at 361.
The General Assembly's treatment of other provisions in the same chapter further supports the inference that Ohio's legislature intended Section 2950.034 to impose criminal, not civil sanctions. In dealing with Ohio's registration and notification requirements for sex offenders, the General Assembly expressly stated that these provisions, have a "non-punitive purpose." O.R.C. § 2950.02; see also State v. Cook, 700 N.E. 2d 570 (1998) (finding Ohio's sex offender registration and notification laws are non-penal). Yet, Section 2950.034 is tellingly silent regarding whether the residency restriction has a civil or punitive purpose. Based on the statutory construction rule of expressio unius, the Ohio legislature's designation of the registration and notifications provisions as non-penal suggests that the other provisions of Chapter 2950, including the residency restriction, are penal.
Defendants rely on a sentence in State v. Cook that described Chapter 2950 as "serv[ing] the solely remedial purpose of protecting the public." 700 N.E.2d 570, 585 (1998). The rest of the case, however, focused on the registration and address verification procedures. As described, the General Assembly had explicitly said that these registration and address verification provisions were not intended to be punitive. The Ohio Supreme Court's one-sentence description of Chapter 2950 as remedial adds little. More importantly, O.R.C. § 2950.99 makes failing to comply with other, specific provisions of Chapter 2950 a felony. This inclusion of criminal penalties is penal and not something that "serves the sole remedial purpose of protecting the public." Had the legislature made it a felony to fail to register and made that retroactive, it also would have violated the Ex Post Facto Clause. For these reasons, the Court finds the Ohio General Assembly intended Chapter 2950 to have a civil purpose for those provisions in which the legislature has expressed such an intent but not for other provisions.
In Cutshall v. Sundquist, the Sixth Circuit found Tennessee's sex offender registration law non-punitive, despite its placement in the criminal code and without any expressed legislative intent by looking to the law's language. 193 F.3d 466, 474 (6th Cir. 1999). The Sixth Circuit considered the provisions "merely require registrants to supply basic information; the burdens imposed are minor, involving only the completion of the appropriate forms." Id. These provisions "evidence[d] an intent on the part of the legislature to monitor the whereabouts of convicted sex offenders. Moreover, the authority of law enforcement agencies to disclose registry information is limited to situations in which disclosure is necessary to protect the public." Id. Ohio's residency restriction, however, manifests an intent far beyond monitoring the whereabouts of sex offenders. The Tennessee sex offenders could move anywhere, provided they kept the authorities informed of their movements. Ohio, on the other hand, restricts its sex offenders' behavior beyond requiring they notify the authorities of their whereabouts.
b. The Law 's Enforcement Procedures
In determining whether the Ohio General Assembly intended the residency provisions to impose a punitive sanction, the Court also looks to the statute's enforcement procedures. Ohio's residency restriction provides for an injunction, and a resident living within 1,000 feet of the school or childcare center or the city prosecuting attorney may bring the action. In Hudson, the Supreme Court found non-punitive legislative intent of a law that empowered an administrative banking agency to enforce it. 538 U.S. at 103. By contrast, here county prosecuting attorneys or other municipal chief legal officers hold the power to enforce the law's provisions. O.R.C. § 2950.03 1(B). While this does not alone establish the General Assembly's intent to make the law penal, it contributes to the argument that the law was so intended.
Defendants argue that county prosecutors enjoy civil, as well as criminal authority. They contend that because the prosecutors have the legal authority to advise and represent the local boards of commissioners, elections, etc., their ability to bring an enforcement action under the residency restriction law does not make the law penal. The county prosecutors, however, only have the authority to bring actions that the civil officer or board directs the prosecutor to defend them in suits brought against them. In other words, the county prosecutors act as counsel for civil boards. They do not have their own, independent authority to bring actions that are not criminal in nature. The fact that prosecutors can bring these enforcement actions acting alone, therefore, favors finding a penal intent.
Further, Defendants argue that the County Prosecutors can only seek an injunction and that neighbors can bring these actions. The Court agrees that injunctions are a civil remedy. Further, neighbors' ability to bring an enforcement action gives some support for Defendants argument that Section 2950.034 provides a civil remedy. On balance, because prosecutors can bring the actions but the enforcement mechanism is an injunction, the Court finds the enforcement procedures ambiguous as to whether the law was intended as criminal or civil.
3. Other Challenges to the Ohio Law
Two Ohio Courts have considered similar challenges and have found the legislature intended the residency restriction to be civil. See Doe v. Petro, 2005 WL 1038846 (S.D. Ohio May 3, 2005); State v. Billings, 860 N.E.2d 831 (Ohio Ct. Com. Pl. 2006). Doe v. Petro, however, does not engage in any analysis, rather it simply states the statute is nonpunitive as if it were a foregone conclusion. The Court finds this not persuasive.
In finding O.R.C. § 2950.034 nonpunitive, Billings found support in its providing injunctive relief; its codification in the same section as the registration and notification provisions that include a statement saying that they are intended to be a civil control, and that the criminal code contains other traditionally civil provisions such as post-conviction relief and victims' rights protections. Billings, 860 N.E.2d at 85-86. The Court has already analyzed the first two of these arguments above.
In Billings the Ohio trial court also relied on Doe v. Smith stating that the imposition of restrictions on sex offenders is a nonpunitive governmental objective. 860 N.E.2d at 85 n. 15 citing Doe, 538 U.S. at 93. This just begs the question. The real question is the nature of the restriction. In upholding notification and registration requirements as nonpunitive restrictions, the Doe Court explicitly emphasized that these requirements "[did] not restrain activities sex offenders may pursue but leaves them free to change jobs or residences." Doe, 538 U.S. at 100. At the very least, this suggests that residency restrictions present a different case from registration and notification provisions. This Court concludes, therefore, that Billings is not persuasive.
Finally, the Court finds little importance that the Ohio criminal code contains other civil provisions. Neither post-conviction relief nor victims' rights protections restricts otherwise legal behavior in a manner similar to the residency restriction. As discussed above, Chapter 2950 includes provisions designated failing to register or notify the officials of a move as a felony. O.R.C. § 2950.99. While the underlying duty to register is not punitive, the felony of failing to register is a criminal provision. The victims' rights and post-conviction relief chapters do not include any designations of crimes as felonies. Chapter 2950 clearly has a mixed purpose.
Based on the above stated reasons, this Court finds, on balance, the legislature intended the statute as punitive. Even if it did not, the statute's intent is at the very least unclear. For that reason, the Court will consider the statute's effect.
D. The Effect of the Statute
Where a legislature intends a statute to be punitive, "that ends the inquiry." Doe, 538 U.S. at 92. Even if the legislature's intent is unclear, however, the effect of the statute would meet the second prong of Doe. Only the "clearest proof” that the overwhelming effect of the law is to impose punishment will negate the legislature's clearly expressed intent. Id. An unclear legislative intent "does not justify the 'clearest proof’ of penal substance" standard. Id. at 110 (Souter, J., concurring).
Turning to the Doe factors, the Court finds the residency restriction imposes an onerous affirmative disability and restraint; is analogous to parole and probation, historical forms of punishment; promotes the traditional aims of punishment, deterrence and retribution; the law is at best minimally related to the non-punitive purpose of protecting children and is excessive in relation to this alleged purpose.
1. Affirmative Restraint
As applied to Mikaloff, the residency restriction imposes an onerous affirmative disability and restraint. In determining whether the act imposes a restraint the Court "inquire[s] how the effects of the Act are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive." Doe, 538 U.S. at 99-100. The Doe Court noted that Alaska's notification and registration requirements "do not restrain activities sex offenders may pursue but leave them free to change jobs or residences." Id. at 100. Not so here. In finding the registration and notification requirements to be constitutional, the Court emphasized that "the record in this case contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred." Id.
In this case, the law prevents a sex offender from living in his own home, even if he purchased the home before the law took effect or if a day care or school moved within 1,000 feet of his home after he established residency there. This is a substantial housing disadvantage. While the law does not affect ownership of property, it affects one's freedom to live on one's own property. A sex offender is subj ect to constant eviction, and there is no way for him or her to find a permanent home. For, there are no guarantees a school or day care will not open up within 1,000 feet of anywhere. This may prevent an offender from purchasing a home, from remodeling it, or even from entering into long-term service contracts for amenities such as cable television. Judge Sheehan, Kenton District Court, Fourth Division in the Commonwealth of Kentucky discussed how residency restrictions could impact "where an offender's children attend school, access to public transportation for employment purposes, access to employment opportunities, access to residential alcohol and drug abuse rehabilitation programs and even access to medical care and residential nursing home facilities for the aging offender." Commonwealth v. Baker, 07-M-00604 (Kenton Dist. C., 4th Div. Apr. 20, 2007) cert. granted Aug. 23, 2007, 2007-SC-000347. This Court agrees that "residency restrictions carry major consequences above and beyond the location of one's home." Id.
Further, the Ohio law affirmatively restrains Plaintiff in this case. Plaintiff Mikaloff is not "free to change residences," but can only move to homes that are not within 1,000 feet of a school. Even more onerous, Plaintiff is not free to remain in his family home, a home that has been in his family for more than 50 years and where he can live rent-free
Defendants acknowledge the law imposes an affirmative restraint, but argues the imposition does not require a finding that the government has imposed punishment. See Doe v. Miller, 405 F.3d 700 (8th Cir. 2005). The Court acknowledges that no factor in this analysis is dispositive, as both Miller and Kansas v. Hendricks found affirmative restraints in the analyzed schemes but neither found the law punitive. Hendricks, 521 U.S. 346, 363 (1997); Miller, 405 F.3d at 721. This does not change this court's analysis that the residency restriction imposes a restraint.
2. Regarded in our History and Traditions as Punishment
The Court finds the residency restriction analogous to the residency restrictions typical to probation and parole. Probation and parole are regarded by our history and traditions as punishment. "[P]arole is an established variation on imprisonment of convicted criminals. . . . The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." Morrissey v. Brewer, 408 U.S. 471, 477 (1972). Further, Congress lists probation as among the appropriate types of punishment a judge can impose. 28 U.S.C. § 994.
The residency restriction places a veto-power over the location of the sex offenders' residence in the hands of law enforcement and that veto-power continues after the sex offender establishes his residence. Parole officers and parole boards hold a similar power over parolees. They must approve a parolee's initial residence and can compel the parolee to move. In this case, Plaintiff Mikal off needed the parole board's approval of his mother's house before the board would release him and the parole board retained the power to force Plaintiff to move if it believed the home may trigger re-offense or otherwise violate a condition of his parole.
The residency restriction actually provides for a more onerous punishment than parole because it is a blanket prohibition. In determining whether a particular home is suitable for a particular parolee, the parole officer or board undertakes a case-specific analysis. The residency restriction engages in no such case-by-case analysis. It limits a sex offender in a way that goes beyond the limits traditionally placed on where a parolee may live.
Further, the residency restriction applies for life, whereas parolees are usually paroled for a certain period of time. The law prevents Plaintiff Mikal off from ever living in his family home again, regardless of whether he "reintegrate[s] into society as [a] constructive individual." Morrissey, 408 U.S. at 477. In this way, the law goes well beyond parole in that it never allows the sex offender to reintegrate into society.
The Defendants argue that non-compliance with the residency restriction does not trigger criminal sanction, whereas violating a parole or probation condition does. The Court does not believe, however, that the law must be exactly the same as parole to be punitive. Although somewhat different from parole, O.R.C. § 2950.034 is sufficiently similar.
Finally, subj ecting a sex offender to constant ouster from his or her home seems a significant deprivation of liberty and property interests. It sentences them to a life of transience, forcing them to become nomads. While such a punishment may be appropriate, it cannot be applied retroactively through ex post facto legislation.
3. Promotes Traditional Aims of Punishment
Punishment aims to impose retribution and deterrence. Smith v. Doe, 538 U.S. at 102; Kansas v. Hendricks, 521 U.S. at 373 (2002) (Kennedy, J., concurring)("[R]etribution and general deterrence are [goals] reserved for the criminal system alone."). Ohio's residency restriction serves both.
The publicity of the residency restrictions increases general deterrence. "Deterrent measures serve as a threat of negative repercussions to discourage people from engaging in certain behavior." State v. Cook, 700 N.E.2d 570, 583 (Ohio 1998). Given the restriction that O.R.C. § 2950.034 places up on sex offenders it serves an obvious deterrent purpose.
Defendants cite Doe, stating that " [t]o hold the mere presence of a deterrent purpose renders such sanctions 'criminal' . . . would severely undermine the Government's ability to engage in effective regulation." Smith v. Doe, 538 U.S. at 102. The Court agrees, but Ohio's residency restriction does more than promote general deterrence.
Ohio's residency restriction significantly furthers retributive purposes. "Retribution is vengeance for its own sake. It does not seek to affect future conduct or solve any problem except realizing justice." State v. Cook, 700 N.E.2d 570, 583 (Ohio 1998). The residency restriction applies regardless of the type of offense committed, the offender's classification level, and his or her risk of re-offense. A feeble, aging paraplegic must leave his home just as a younger one. This lack of any case-by-case determination demonstrates that the restriction is "vengeance for its own sake." Defendants argue the law is remedial and not punitive in nature, but its failure to make any differentiations between offenders belies this argument.
4. Rational Relation to a Nonpunitive Purpose
The Court heard conflicting expert testimony on the efficacy of the residency restriction. The Court, however, does not believe its duty is to judge the wisdom of the legislature's enactment, only whether it rationally relates to a non-punitive purpose.
Defendants assert the residency restriction is rationally related to the non-punitive purpose of protecting school children from sex offenders near schools. The restriction does limit the access and opportunity that a sex offender will have in re-offending against a child walking in front of his residence to or from school. Yet, it only restricts a sex offender's place of sleep. It does not limit the offender's ability to occupy a residence in proximity to the school during school hours. It dos not limit the offender's ability to go to any public park or drive on any street within 1,000 feet of a school. And it does not limit the offender's access to children in the offender's own neighborhood.
Ohio has found Mr. Mikaloff a sexual predator. But its statute does not and will not prevent him from spending all of his days, while school is in session and while children are traveling to and from school, at his family home within 1000 feet of the school. Indeed, the Court finds it likely that on the facts before it Mr. Mikaloff will do just that. The statute, instead, forces him to sleep in his truck at night, when, presumably, the children are safely at home. See also Commonwealth v. Baker, 07-M-00604, at 26 (Kenton Dist. Ct., 4th Div. April 20, 2007) cert. granted Aug. 23, 2007, 2007-SC-000347 (noting a sex offender "can return to the family home from which he was forced to move on a daily basis if he so chooses, provided he does not sleep there, and peer out the window in deviant lust at the toddlers frolicking on the playground. While doing so, provided he can conceal his act of self gratification from public view, he can even masturbate. He can do all these things legally, without offending the residency restrictions.").
Both experts agreed that an important question asks whether many children reside around the sex offender's house, not that home's proximity to a school. [Tr. 194-196]. Thus, Ohio's residency restriction shifts the risk of molestation from children living near a school to children living farther away. [Tr. 196]. As Defendant's expert testified: "it's not the magic of the 1000-foot. It's that we can deny access and opportunity to a population that is vulnerable for sex offenders." [Tr. 201]. Indeed, if the sex offender lived near the school, the children's parents would be notified of their presence, due to Ohio's notification law, and therefore could advise their children to stay away from the offender. If the offender is only present during the day, however, the children's parents will have no warning of the potential danger.
Further, Ohio's residency restriction does not address the majority of child sex abuse cases because those cases involve family members or acquaintances. The overwhelming majority of child sex abuse cases involve an abuser who is related to or acquainted with the child victim. [Tr. 87, 91, 93]. Child sex abuse involves an offender who is related to the child (including step-relationships) approximately fifty percent of the time. Yet, the law has no effect on sex offenders who abuse family members, and does not even restrict these offenders ability to live with their previous victims.
It is unclear that the residency restriction denies sex offenders access and opportunity to school children. The Court only considers, however, whether a "rational connection" exists. See Doe, 538 U.S. at 102. The Court concludes that to restrict where an individual sleeps at night, even while it does not restrict where he or she spends her days, has some rational relation to restricting access or opportunity to children in those areas.
5. The Statute's Excessiveness with Respect to that Purpose
While the statute is rational, the Court finds the statute is excessive with respect to its stated purpose. The complete lack of individualized risk assessment troubles the Court. As Justice Souter noted in Doe "the fact that [the registration and notification law] uses past crimes as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on." Doe, 538 U.S. at 109. The Ohio statute sweeps in individuals regardless of their current risk of recidivism.
It would be possible to base a residency restriction on a more individual basis. For instance, Arkansas has a similar statute with individualized risk assessment, as do many other states. See Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1017 (8th Cir. 2006) (noting the Arkansas residency restriction statute with individualized risk assessment was on "stronger constitutional footing than [an] Iowa statute" without similar individualized assessment). But see Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (finding Iowa residency restriction without an individualized assessment did not violate the Ex Post Facto clause of the Federal Constitution); c.f. id. at 725-26 (Melloy, J., dissenting) (arguing the law was excessive in relation to its purpose in part because of the lack of individualized assessment).
E. Appropriate Relief
A declaratory judgment is appropriate in this case. It would both completely settle the controversy and readily clarify the legal relations between Plaintiff Mikal off and Defendants. See Bituminous Casulty Corp., 373 F.3d at 813. Further, no pending state court proceedings currently exist and so the judgment is not a "race to res judicata" nor would it encroach upon state court jurisdiction. Finally, there is no more effective remedy for protecting Plaintiff Mikal off s rights. See id.
Plaintiff has also shown a continuing irreparable injury if the court fails to issue the injunction, and the lack of an adequate remedy at law. See Kallstrom, 136 F.3d at1067. This Court has already found that Mikaloff s inability to continue to reside in his home would cause him severe injury. Further, this injury has no adequate legal remedy.
For the reasons stated above, the Court DECLARES that O.R.C. § 2950.034 violates the ex post facto clause of the Constitution and ENJOINS defendants from enforcing this law against Plaintiff Mikaloff. This action is terminated under Fed. R. Civ. P. 58.
IT IS SO ORDERED.
Dated: September 4, 2007
s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE