Sex-Abuse List Grows No Trial Necessary, No Statute of Limitations, by Sharon Coolidge, Cincinnati Enquirer [Ohio], September 25, 2006

Sex-Abuse List Grows
No Trial Necessary, No Statute of Limitations

By Sharon Coolidge
Cincinnati Enquirer [Ohio]
September 25, 2006

http://news.enquirer.com/apps/pbcs.dll/article?AID=/20060925/NEWS01/609250356/1077

People who have never even been charged with a sex offense could end up on a public registry of sex offenders.

That new Ohio law - the only one in the nation - is being questioned by civil liberty groups and even the victim's rights group that spurred its creation.

But state legislators and county prosecutors say the registry, which is similar to a Megan's Law database of convicted sex offenders, is a way to protect the public.

Joe Deters

How the registry would work

Prosecutors, the state's attorney general or victims can seek to put a person on the civil registry.

The person making the request must prove the sexual molestation. But because the action is civil instead of criminal, a judge will weigh the evidence to determine if the crime was more likely than not to have occurred instead of finding the abuse happened beyond a reasonable doubt.

If a judge determines the abuse occurred, the person must register with the Ohio Attorney General's Internet Civil Registry.

The registry works the same way Ohio's Megan's Law registry works. A person's name, address and picture is placed in a database accessible to the public. Community notification is made when the person is placed on the list. They cannot live within 1,000 feet of a school. Failing to do this is a felony of the fifth degree.

After six years, the law allows a defendant to ask the court to remove his name from the registry.

The problem with the civil registry, the groups say, is that, unlike under Megan's Law, the people listed would never have been criminally charged. For the civil registry, it will be up to a judge to decide whether the crime likely occurred.

Hamilton County Prosecutor Joe Deters is the first to test the law.

Earlier this month he filed a motion in Hamilton County Common Pleas Court asking that David J. Kelley, a priest who served at St. Therese the Little Flower in Mount Airy, be ordered to register with the state's Internet Civil Registry.

Kelley, who now lives in Nashville, is accused of sexually abusing a young student at the church's grade school in the early 1980s.

But because of the statute of limitations, criminal and civil charges could not be filed.

"People deserve to know if they live near sexual offenders," Deters said. "The statute of limitations may have expired, but this allows for notification.

"The legislature really thought about those concerns," Deters added.

A hearing is set for Dec. 6. Kelley, who is on administrative leave from the Archdiocese of Cincinnati, could not be reached for comment.

"This raises a lot of questions for me," said Jonathan Entin, a law professor at Case Western Reserve University who specializes in constitutional law and civil rights issues.

"At least in criminal registries there is some sort of formal determination a person committed a sex offense."

Entin said a civil registry may not be practical because statutes of limitations exist for good reasons: Cases get old, memories fade, witnesses can't be found or die.

Those same issues will likely play a role in civil proceedings, Entin said.

"This sounds like an attempt to end-run the legal process," Entin said.

The registry, created in August, substituted for a proposal to extend the statute of limitations in old child abuse cases.

Survivors Network of Those Abused by Priests, a group that lobbies for abuse victims' rights, fought for that bill because hundreds of people who claim priests abused them as children are unable to file lawsuits or in many cases pursue criminal charges.

SNAP members say the civil registry replaced the statute of limitations extension at the last minute.

"I don't think it will work and it won't deter the abuse," said Christy Miller, SNAP's Cincinnati co-leader. "These people won't be financially responsible and they're not criminally responsible. All that will happen is their name will go on a list that nobody will see because nobody knows about it."

The registry's creator, Ohio Rep. Bill Seitz, R-Green Township, knows it's controversial, but said it accomplishes the same goals as eliminating the statute of limitations while still being constitutional.

"Instead of extreme positions, we came up with a balanced and innovative solution," Seitz said.

PUNISHMENT WITHOUT PROTECTION

The Ohio ACLU hasn't taken any action, but the group's legal director, Jeff Gamso, called the civil registry troubling.

"It is a dangerous, troublesome law," Gamso said. "This is punishment without the protection of a criminal proceeding."

Mark Godsey, director of the Ohio Innocence Project, called the lower standards of a civil hearing "problematic."

"It gets around the idea of 'beyond a reasonable doubt', which is the standard in criminal cases," Godsey said. "For this to work, it needs the same protections as are present in a criminal case."

Entin expects that registry will be challenged on constitutional issues, but predicted that will be a tough argument to prove because there is a built-in court proceeding and criminal registries have been upheld all over the country

E-mail scoolidge@enquirer.com