OH- If convicted, teen might not have to register as sex offender

See earlier post "Girl, 15, accused of sending nude photos over phone" 10-7-2008 Ohio:

Judge has flexibility in sentencing for first-time offender who is 14 or 15

NEWARK — A 15-year-old girl is accused of distributing nude photos of herself to other minors, and one state legislator is questioning whether she should be labeled a sex offender.

The Licking Valley High School student was arrested Friday after school officials discovered the materials and brought in the school’s resource officer for a police investigation.

After spending the weekend incarcerated, she pleaded deny Monday to both charges: Illegal use of a minor in nudity-oriented material, a second-degree felony; and possession of criminal tools, a fifth-degree felony.

The child pornography charge for a convicted adult requires a Tier II sexual offender classification, but for a juvenile of this defendant’s age, the judge has flexibility, said Jennifer Brindisi, a spokeswoman for the Ohio Bureau of Criminal Identification and Investigation.

“There’s a part of juvenile section of Senate Bill 10 (Ohio’s version of the federal Adam Walsh Act) that says if the child is a first-time offender and age 14 or 15 that the judge can decide not to make her register,” she said.

State Rep. Jay Hottinger, R-Newark, wrote the state’s Megan’s Law bill, the predecessor of the Adam Walsh Act, and said this case was not something the legislature envisioned.

“Clearly it was in an illegal act,” he said Tuesday. “Clearly it was an unacceptable act and there needs to be consequences from that, but we need to make sure the punishment is a reasonable punishment.”


Licking County Prosecutor Ken Oswalt, who declined comment ahead of a written statement to be released today, had been visiting high schools in the county and educating teens on the consequences of such an action. Licking Valley High School was one of those stops.

During assemblies, Oswalt talked about the dangers, both in personal embarrassment and contribution to child pornography on the Internet.

He said in April his office had received about 20 cases involving questionable cell phone pictures. None were charged pending their adherence to a plan crafted with their families.

Licking County Assistant Prosecutor Erin Welch said Monday the investigation into the incident remains open, including exploring whether charges will be filed against the minors who received the photos.

If the Prosecutor’s Office elects to bring those teens into court, they could be facing a different section of the same charge pending against the sender of the pictures and classification as sex offenders as well.

According to Ohio law, 2907.323(A)(3) states that anyone possessing material that shows a minor in a state of nudity is guilty of a fifth-degree felony. The violation also might qualify the juvenile as a Tier I sexual offender, which requires annual registration for a decade.

The section the girl, who is a foster child, was charged with allows parents or guardians to take photos of their unclothed children for a list of acceptable purposes but does not provide an exemption for the child themselves.

Hottinger said the portions of the juvenile section of Ohio’s Megan’s Law, enacted in 2002 and replaced Jan. 1, were crafted to resemble their adult counterparts for good reason.

“What were aiming at was a growing problem that we were seeing amongst juveniles and that was they were committing some very serious adult-like crimes,” he said.

Brindisi said that the Adam Walsh Act reduces much of the discretion allotted to judges in Megan’s Law and transformed sex-offender classification to an offense-based system.

“It’s pretty black and white,” she said.

If the girl charged Monday is classified as a sexual offender, Brindisi said as a juvenile in this instance she would not be subject to publication on the public Web sites maintained by the Licking County Sheriff’s Office or the state but would have to register for 20 years as the law states.

A status conference in her case is scheduled for Oct. 20. She is on house arrest and may not have a cell phone or access to the Internet without adult supervision and for no purpose other than school work.

Licking Valley Schools Superintendent Dave Hile said that board policy calls for notification of certain staff members if a student or other individual labeled as a sex offender is on school grounds.

Calls to State Sen. Tim Schaffer and the girl’s defense attorney were not returned. ..News Source.. by Russ Zimmer