Ohio Supreme Court: New sex offenders may avoid registry rules

3/18/2010

COLUMBUS, Ohio — The Ohio Supreme Court has delivered a setback to efforts by state lawmakers to apply the tough new sex offender notification requirements laid out in the federal Adam Walsh Act.

Lawmakers had intended for communities to be notified every time a sex offender in the most severe category began living, working or going to school in their neighborhoods. But the high court found that the law's language conflicts with that intention.

In a unanimous decision Thursday, the court ruled that sex offenders classified in the most dangerous category, Tier III, after Jan. 1, 2008, can avoid the new community reporting requirements under exceptions similar to those in Ohio's old law.

A state lawmaker says he will draft a bill to fix the problem.

Ohio was the first state to put substantially in place the sex offender registration and notification system required by the Adam Walsh Child Protection and Safety Act of 2006. In June, U.S. Attorney General Eric Holder Jr. gave states and American Indian tribes another year to meet the requirements after complaints about the cost and work involved in implementation.

In the Ohio high court's majority opinion, Justice Robert Cupp agreed with lower courts that the wording of the law was clear in allowing the exceptions to community reporting to continue to apply.

The case involved Stephen McConville, who pleaded guilty in Lorain County in July 2008 to rape and gross sexual imposition. After a hearing, a trial court decided he was unlikely to commit future sexually oriented offenses and could therefore be exempted from ongoing community notification requirements.

The 9th District Court of Appeals affirmed the trial court's decision that McConville was eligible for the exemption even though he'd been classified as a Tier III sex offender after Jan. 1, 2008.

Cupp noted that the Ohio law, enacted in June 2007, was written in the present tense when discussing procedures for determining whether sex offenders might be exempted from reporting requirements.

"In contrast to the state's position, the language of the statute does not indicate that it applies only to those sexual offenders whose status had been previously determined under the provisions of the former (law)," he wrote. "As a result, we decline to interpret the statute when no interpretation is required."

John M. Prusak, McConville's lawyer, said it is unclear how many future cases will be affected by the decision. The ruling leaves it up to a trial court's discretion whether a newly classified sex offender's whereabouts will be provided to neighbors, schools and certain volunteer organizations and businesses as provided by the new law, he said.

"The way the state of Ohio was arguing, it was that if you're a Tier III sex offender you're automatically having community notification; there's no discretion whatsoever," Prusak said. "But it's not like they just left out a word or so. The way the entire statute is written, it's giving the trial court that discretion."

Sen. Tim Grendell, chairman of the Judiciary Committee on Criminal Justice, said Thursday he'll introduce a bill to fix the offending language.

"Apparently the Supreme Court doesn't think we've got it artfully written," he said, noting that the bill closely mirrors Adam Walsh Act provisions. "We're going to have to go back to the drawing board."

Grendell, a Chester Township Republican, said lawmakers were trying to avoid adjusting criminal penalties for past acts in order to protect offenders' constitutional rights. Ohio's constitution prohibits making retroactive laws.

Deborah Donovan Rice, executive director of Stop It Now, a child sexual abuse prevention group, said the ruling reinforces her organization's efforts to take people's focus off relying on registration and notification for their safety and learning techniques to stop violence before it happens.