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It ain't easy being a predator...

... as indicated by a bevy of decisions handed down in various Ohio districts last week.  First up is the 2nd District's decision in State v. Ayers, affirming the trial court's designation of the defendant as a sexual predator almost a decade after his conviction for kidnapping.  Ayers wasn't a choirboy by any stretch; as the report of the psychologist on the predator designation noted:

[Ayers] dragged the victim to the living room and gagged her using strips of cloth. He then dragged her upstairs to a bedroom, where he tied her to the bed by her wrists and ankles and sexually assaulted her. The victim reported Mr. Ayers then grabbed her dog and put the dog's head between her legs. He told the victim he was going to kill her in the morning and asked if she preferred to die by being burned in the bed or by being suffocated or drowned.  He also told her of his plan to dispose of her body so he would not get caught for the crime.

So I think the court was on pretty firm footing in concluding that the "used cruelty" criterion of RC 2950.03(B) was established.

The rest of the opinion, though, is where you run into problems.  The psychologist had opined that a prior criminal record was a strong indicator of a tendency to reoffend, which was a problem because Ayers' criminal record consisted of convictions for petty theft, trespassing, and domestic violence, all misdemeanors without any apparent connection to sexual offenses.  The defendant, though, had also been charged with rape on two occasions, and the court held that these could be considered, too, notwithstanding the fact that defendant had not been convicted of them. 

Prior history was also relevant in State v. Blanchard, another decision affirming a predator designation, this time by the 8th District.  There, the defendant, who was in a mental institution at the time, flashed a social worker, and then attacked her, trying to pull off her clothes before being restrained.  He'd claimed that he was doing this not for sexual release, but because he was "acting out" in an attempt to get discharged.  (Not sure of the thought process there, but then again, a clear thought process isn't exactly the hallmark of people in mental institutions, is it?)  Blanchard had tried the same routine once before, had been charged with gross sexual imposition, but had been found incompetent and unrestorable.  The trial court found that the prior conduct, coupled with a STATIC-99 score indicating a high risk of reoffending, was sufficient to warrant a predator designation.  Given that the appellate court review is limited to the question of whether the judgment was supported by "some competent, credible evidence," that was enough for the appellate panel to uphold the decision.

To be blunt, this whole area of law is a mess.  As mentioned, the court in Blanchard found the high STATIC-99 score significant, yet as I've noted before the 8th District on numerous occasions has dismissed a low score, at one point noting that the test is "of practically no worth in predicting the risk of sexual recidivism."  The fact that the offense involves multiple victims has been used in numerous cases as a justification for imposing a predator designation, but the psychologist in Ayers testified that there's "no proven correlation" between that and the likelihood of a repeat offense.  That leads one to wonder just which of the 2950.09(B)(3) factors are based upon solid empirical data.  Probably not many, considering that the entire sexual predator law is based on the notion that strangers pose the greatest danger of predation, when in fact over 80% of sexual abuse is practiced by relatives or others known to the victims.

And why are we doing all this in the first place?  That was brought home in another 8th District case last week, Lyndhurst v. Rapoport.  Rapoport was convicted of downloading child porn in 2005, and was branded a sexual predator.   He was 54, and it was his first offense, so he was given probation, but a year later the City of Lyndhurst sought to evict him from the house he and his wife had lived in since 1979 because the house was within 1000 feet of a pedestrian walkway owned by a local school; as the appellate court explained,

In essence, the City claimed that although Rapoport did not live within 1,000 feet of Sunview School, Rapoport did live within 1,000 feet of a pedestrian walkway, which is part of the Sunview School premises.

The trial court's grant of summary judgment to the city was affirmed. 

So what we have is a designation based upon criteria which have not been empirically validated, and reviewed under an appellate standard so deferential as to virtually insulate the trial court's decision from review.  All of this is to regulate where sexual offenders are allowed to live, which all of the available evidence to date, as I pointed out a few months back, indicates has no actual effect on child abuse, and may actually be counterproductive in that regard.


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