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Civil Sex Offenders

No, the title of this post isn't an oxymoron.  It's part of SB 17, and took effect at the beginning of August.  The law was initially intended to broaden the statutes of limitations for childhood sexual abuse, and it certainly does that:  the act creates a 12-year statute of limitations for "childhood sexual abuse," which doesn't begin to run until the victim reaches the age of majority, and is tolled as long as the perpetrator has "fraudulently concealed facts that form the basis of the claim."  The act also increases the statute of limitation for criminal actions involving neglect or abuse of a child (which goes well behind sexual abuse):  the statute doesn't begin to run until the victim reaches age 18, unless an agency or the police have been notified that the abuse occurred.

Had that been all the legislature did, the bill would have been unremarkable.  But making laws is a lot like eating potato chips:  once you get started, it's hard to stop.  And the legislature didn't stop until it had added a few rather disturbing embellishments.

The first was to expand the role of civil protective orders under RC 3113.31 to include the commission of a "sexually oriented offense" as a grounds for seeking an order.  While the standard CPO can only be filed against a family or household member, a petition seeking a CPO for a sexually oriented offense can be filed against anyone.  The same procedure applies:  the obtaining of an ex parte order, and the full hearing within ten days after that.

This just doesn't make much sense.  Civil protection orders exist because there are situations where emergency relief is needed.  It's hard to see how sexual abuse could create that type of situation, especially where the abuser is not a household or family member.  What's more, whatever arguments might be made with regard to police responsiveness to claims of domestic violence, they don't apply to claims of sexual abuse:  if you suspect that hubby is molesting the children, dropping a dime on him to the police is going to get him out of the house a lot faster than filing any petition will.  Given that the Supreme Court has held that the quantum of proof necessary for issuance of a CPO is only a preponderance of the evidence, this poses a substantial potential for abuse, and I'm not talking about sexual abuse.

Even more disturbing is the provision for having someone declared a sex offender in a civil proceeding.  Under RC 2721.21, if you claim that you've been the victim of childhood sexual abuse, but the statute of limitations has expired on your claim, you can ask the attorney general or the county prosecutor to file a petition against the person who allegedly abused you.  If they don't do it within a certain time (45 days for the prosecutor, 90 for the AG), you can do it yourself.  What could happen next sounds like something Orwell could have written:

If the court finds by a preponderance of the evidence in an action brought pursuant to this section that the defendant would be liable for assault or battery based on childhood sexual abuse but for the expiration of the limitation period. . . , the court shall enter a judgment with that finding against the defendant and shall order that the defendant be listed on the civil registry maintained by the attorney general pursuant to section 3797.08 of the Revised Code.

As you might have guessed, getting put on the civil registry of declared sexual offenders is not among the methods Dale Carnegie suggested you use to influence people.  RC 3797.08 requires the Attorney General to establish an internet site allowing people to find out who's registered as a sex offender; while the AG gets to decide what information is included, at a minimum that will be "the name, current residential and employment addresses, and photograph of the registrant."

I don't think you're going to find many people who are unsympathetic to the plight of victims of childhood sexual abuse, but this makes even less sense than the expanded CPO.  The entire purpose for having a statute of limitations is because of the concern that using stale evidence significantly increases the possibility of error in the fact-finding process.  What this provision essentially does is eliminate the statute of limitations:  someone claiming to be a victim can bring a claim at any time, and it will be heard in the exact same fashion as if the limitations period hadn't expired.  Rather than simply having a judgment taken against you, you're now listed on an internet registry of sex offenders, essentially indistinguishable from those who are required to register because they've been found guilty of a crime.  In other words, what the law is saying is that stale evidence isn't reliable enough to justify imposing a civil judgment, but it is reliable enough to justify placing someone on a registry of sex offenders.

And all of this, of course, based upon a mere preponderance of the evidence.  Up to this point, to be required to register as a sex offender, a person had to be convicted of a sexually-oriented offense, which requires proof beyond a reasonable doubt, or designated as a sexual predator, which requires clear and convincing evidence.

There should be some interesting litigation over these new provision.  And I wouldn't be at all surprised, depending upon the election returns in a month, to see the legislature amend the law to provide that those who've had a CPO issued against them for a sexually oriented offense are to be added to the civil registry of sex offenders.

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