Does anybody else find this extraordinarily frightening? That it's possible for you to have the same restrictions placed upon you that are placed upon sex offenders, even when you haven't been convicted?
Posts: 1466 | Registered: Jan 2003
| IP: Logged |
I completely understand and support the need to keep children safe from convicted sex offenders, but this is a step too far. Accusations of sexual crimes already destroy people's lives. It shouldn't be any easier to stage a witch hunt than it already is.
Posts: 3950 | Registered: Mar 2006
| IP: Logged |
posted
I'd like to hear/read some of the legal justification for/against this. At first exposure to it, it seems like something that wouldn't withstand a challenge from someone put on this list. Sans conviction, how can there be legal justification for putting someone through notificaiton requirements?
Unless it's the result of a court deal -- like "in lieu of conviction, you agree to be on this list" kind of thing.
Posts: 22497 | Registered: Sep 2000
| IP: Logged |
posted
The ridiculousness of this should be apparent to anyone, even in Ohio.
If someone can be accused as a sex offender, there should be SOME criteria in place, or checks and balances to stop ANYONE from being able to yell "Sex Offender!" and have it carried through.
I can't imagine this will hold up in a higher court. All it will take is for one person who wasn't charged but was put on the list to appeal to a higher court. Having their name put on that list WITHOUT having been convicted could amount to slander couldn't it? (or libel, whichever).
Regardless, this has to be a violation of someone's civil liberties. If there's enough evidence to get them on that list then CHARGE THEM and do it in a court of law. If it's just he said she said, it's not enough, and it should be over.
Otherwise we get this, with about the same level of thought and logic put into it.
Posts: 21898 | Registered: Nov 2004
| IP: Logged |
quote:Regardless, this has to be a violation of someone's civil liberties.
We need many more details before commenting on whether this MUST be a violation of civil liberties.
quote: Having their name put on that list WITHOUT having been convicted could amount to slander couldn't it? (or libel, whichever).
Highly doubtful. Proof of the truth of a statement is a defense to slander and libel. This proof requires a preponderance of evidence - basically an even chance plus a little bit more - which is the same standard most likely to be applied in this proceeding.
So, if the name is on the list, there's likely been a finding by a preponderance of the evidence that the accusation is true, which would be enough to defend against a defamation charge.
Think back to OJ - he was acquitted but later found civilly liable for the killings.
quote:I'd like to hear/read some of the legal justification for/against this. At first exposure to it, it seems like something that wouldn't withstand a challenge from someone put on this list. Sans conviction, how can there be legal justification for putting someone through notificaiton requirements?
The crux of the plan is this:
quote:A recently enacted law allows county prosecutors, the state attorney general, or, as a last resort, alleged victims to ask judges to civilly declare someone to be a sex offender even when there has been no criminal verdict or successful lawsuit.
We don't know the standard of proof involved, whether the accused has a right to notice, to present evidence, and to cross examine accusers.
The plan does three things to those on the list:
1.) Makes their name publicly available. 2.) Imposes a duty to register where one lives. 3.) Imposes restrictions on where a person may live/travel.
All three of these are things that can be imposed in other contexts absent criminal conviction. Debtors and people who file bankruptcy are listed in various places, Selective Service requires millions of people to register their address, and and restraining orders based on spousal abuse and stalking do not require a criminal conviction in most (maybe all?) states.
I'm not, at this point, attempting to say that these situations justify this law. I'm merely pointing out that there are state interests which justify all three types of conditions absent criminal conviction.
Were I to fully analyze this from a legal perspective, I'd look at the cases where each of these have been imposed absent criminal conviction. Then I'd compare the state interests in those cases with the state interest in preventing sexual abuse and see if the justification is as strong as in those other cases.
I suspect this would be a close decision either way, and it might be split - that is, the publishing of the name might be allowed, the registration requirement might or might not be, and living restrictions not.
One thing to remember when trying to analyze this is that the Supreme Court has held registration requirements to not be punishment. In Smith v. Doe, SCOTUS upheld an Alaskan registration requirement for convicted sex offenders.
While the case might not seem to apply here, the defining issue was whether registration was a civil, nonpunitive regime for ensuring safety. Had the registration been found to be punishment, it would have failed on double jeopardy grounds.
So, while SCOTUS hasn't upheld registration for non-convicted persons, it has stated that registration in and of itself is a civil sanction, which suggests it could be imposed via a civil proceeding.
Note that Souter joined in the majority upholding the law, finding it to be a close case but ultimately deciding that registration can be a civil sanction.
In short, precedent strongly suggests that the first 2 elements of the plan - listing and registration - are likely to be constitutional when imposed after a civil proceeding. The living restrictions are more difficult to judge at this point.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
I would like to get my hands on the actually law that states how this must happen. To me it sounds like it is designed for thouse whose statue of limitations has run out. If that is the case and they still run a trial to determine if the "offender" be placed on the list, I could see it standing up.
Posts: 224 | Registered: Jan 2001
| IP: Logged |
quote:The act authorizes the Attorney General or the prosecuting attorney for the county in which resides a person who allegedly committed childhood sexual abuse of a victim who is precluded from bringing a civil action based on the abuse solely due to the expiration of the limitations period to bring an action in the Franklin County Court of Common Pleas or the court of common pleas of the county in which the alleged abuser resides for a declaratory judgment against the alleged abuser. If the alleged abuser does not reside in Ohio, the Attorney General or Franklin County Prosecuting Attorney may bring the action in Franklin County. The abuse must allegedly have occurred in Ohio. The act authorizes the victim to serve notice on the Attorney General, the prosecuting attorney, and the alleged abuser of the victim's belief that he or she has a right to bring the declaratory judgment action. If the prosecuting attorney does not commence an action within 45 days, the Attorney General may do so within the next 45 days. If neither the prosecuting attorney nor the Attorney General brings an action, the victim may do so in the county in which the victim or defendant resides or where the abuse allegedly occurred. If the victim brings the action, the court may award attorney's fees to the prevailing party. If the court finds by a preponderance of the evidence that the defendant would have been liable for childhood sexual abuse but for the expiration of the limitations period for the action, it must order that the defendant be listed in the civil registry established by the Attorney General (see "Creation of civil registry and other duties of Attorney General," below) and notify the defendant of the defendant's obligations under the act (see "Registration by a person found liable for childhood sexual abuse in a declaratory judgment action," below). The court may remove the defendant from the registry after six years if it finds by clear and convincing evidence that the defendant has not again been found liable for childhood sexual abuse, has not been required to register under the SORN Law, and is not likely to commit an act in the future that would require registration under the SORN Law or under the act. (R.C. 2721.21.)
...
Under the act, registration information about persons required to register after being found in a declaratory judgment action to have committed childhood sexual abuse that is placed on the internet by the Attorney General or that is in possession of the sheriff is a public record (R.C. 3797.08(C) and 3797.09).
...
The act prohibits as a fifth-degree felony the failure of a person found liable in a declaratory judgment action based on child sexual abuse to register, give a required notice of a new residence or employment address or of an intent to reside, or verify a current address. It provides as an affirmative defense to a charge of failing to send written notice of a change of address or notice of intent to reside that the registrant did not know on the notice due date of the address change or the new address and that the registrant notified the sheriff not later than the end of the first business day after learning of the address change or new address. (R.C. 3797.10.)
The act also prohibits a person found liable in a declaratory judgment action based on child sexual abuse from living within 1,000 feet of school premises (R.C. 3797.11).
quote: If the court finds by a preponderance of the evidence that the defendant would have been liable for childhood sexual abuse but for the expiration of the limitations period for the action
What constitutes 'proof' in these kinds of cases? I would think that it would almost have to be one person's word against another's. Given that, the potential for abuse, either intentionally or unintentionally, would seem to be enormous.
Posts: 13123 | Registered: Feb 2002
| IP: Logged |
posted
Reasonable doubt cases (i.e., criminal convictions) can easily turn on one person's word against another. I tend to agree that this isn't enough in general, but there's no legal rule prevent a rape conviction based solely on the victim's word. The lighter standard of proof makes it more likely that one person's word will suffice, so the risk and potential for abuse is certainly greater. But it's an existing risk.
This is a situation where lying should carry criminal consequences.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
Printer-friendly view of this topic
