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Sexual predators

One of the purposes of appellate review is to give lower courts clearer guidance on the issues which come before them.  A trio of 8th District decisions last week shows that the appellate courts are still struggling to give any meaningful direction in the area of sexual predator designations.

Two of the cases were fairly routine, and fell within the normal range of opinions on that issue.  The defendant in State v. Buckley was classified as a sexual predator for committing an attempted rape in 1989, and he had four other sexual offense convictions in the thirty years prior to that.  The defendant in State v. Twiggs was designated a predator for an offense which occurred in 1979; he'd been in prison virtually the entire time since then, and again had prior offenses involving women.  The court correctly focused on the question of whether the defendants were likely to reoffend, and concluded that their history, and certain other factors, made that more likely.  Their ages admittedly made that somewhat questionable; Buckley had no history of offenses against children, and at age 64 probably didn't pose much of a threat to anyone older than that.

The outlier of the cases, though, is State v. RosenburgIn the interests of full disclosure, I handled the appeal, but this really isn't a gripe session.  The court's opinion was quite complimentary, stating that "counsel raises several compelling and well-reasoned arguments," and that I "make a compelling case that the existing sexual predator classification process can potentially result in dissimilar treatment of similar offenders."  Needless to say, that made my client feel a whole lot better when the court affirmed his sexual predator classification.

Here's the problem with Rosenburg:  the facts.  The defendant was 20 years old, had been invited to a woman's apartment at 3:30 in the morning, where they both drank and smoked marijuana.  She fell asleep on the couch, and when she woke up, the defendant was on top of her, and held her down while he had sex with her.  He wound up pleading guilty to one count of sexual battery, and was sentenced to three years in prison. 

The trial court found several factors in branding Rosenburg a predator:  he'd had prior offenses, the offense involved "cruelty," and the STATIC-99 predicted a 38% chance of sexually reoffending within fifteen years.  The problem was that none of the prior offenses had anything to do with sex, or even violence (they involved drug possession and receiving stolen property), the offense didn't involve any more cruelty than any offense involving force would, and, as I've mentioned before, the 8th District has been fairly consistently in holding that the STATIC-99 is pretty much a non-factor.  Besides, it's hard to see how a 38% chance of reoffending constitutes "clear and convincing evidence" that the defendant will in fact reoffend.  If I try a fender-bender and the doctor says there's a 38% chance that my client's injuries were caused by the accident, I don't make it past a directed verdict.

So what happened?  Part of the problem is the statute itself, RC 2950.09, which spells out the procedure for designating a defendant as a sexual predator.  Included in that procedure is a list of ten non-exclusive criteria for the court to consider, such as the offender's prior history, the ages of the offender and victim, and so forth.  Anytime you have this sort of thing, instead of looking at the statute holistically to determine what its purpose is and how best to serve that purpose, the court tends to fall into what I term Chinese Buffet Syndrome:  it winds up going down the list and selecting this one and this one, then calls it a day.

Unfortunately, the appellate courts have offered virtually no guidance in how these criteria are to be applied, other than saying that the trial judge is required to consider them; the judge doesn't have to find all of them, or even a majority of them.  The judge doesn't have to give her reasons for finding any of them to be applicable, but need only indicate that she considered them.  In Rosenburg, the appellate court hung its hat on the fact that the defendant failed to acknowledge that he'd committed a crime, and expressed no remorse for it.  Although that's not one of the factors listed, they are non-exclusive, and one could make an argument that someone who committed this offense and didn't see anything wrong with it is more likely to commit another one.  On the other hand, one could argue that spending three years in prison would serve as a sufficient disincentive, and that while this is certainly criminal conduct, there's a legitimate question whether Rosenburg should have to drag around a sexual predator designation for the rest of his life for doing something that several people I know majored in while they were in college.

In fact, one comes away from a reading of Rosenburg with the question:  under what circumstances would an appellate panel reverse a sexual predator designation?  The court states in its opinion that

we do acknowledge the potential danger of "overclassifying" all sexual offenders as predators. The risk that the pool of offenders so labeled will become so large as to dilute the identity of those who pose the greatest risk to the public is indeed real.

Unfortunately, it gives no guidance to the lower courts on how to avoid that overclassification.  It's hard to imagine that the legislature had somebody like Rosenburg in mind when they enacted the sexual predator statute.  A better approach would be to focus on the concerns that motivated the passage of the statute in the first place:  sex offenses against children, and violent sex offenses against anyone.  That's what a "sexual predator" is in common parlance.  Laws have a tendency to take on a life of their own, and that's what's happened to RC 2950.09:  instead of looking at what the law is intended to achieve, both trial and appellate courts engage in a mechanistic process of checking off which factors apply and which don't.  As long as that continues, the Rosenburg panel's concerns about the danger of overclassifying sexual offenders is warranted.

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