Yesterday (12/5/12) the Ohio Supreme Court gave Kyle Raber an early Christmas gift – despite pleading guilty to a sex offense, he does not need to register as a sex offender (State v. Raber, 2012-Ohio-5636). And, this case illustrates the absurdity in America's sex offender laws.
It seems Kyle (then 18 years old) and his girlfriend at the time (also 18) engaged in sexual intercourse. After the fact, the alleged victim claimed that she only consented to vaginal intercourse not anal intercourse. I believe the issues in the Raber case are quite common. He and she drank, they had reduced inhibitions, they had consensual sex but somewhere along the way she alleges she did not consent. Within 6 weeks, the Wayne County Prosecutor's Office indicted him on a 3rd degree felony – Sexual Battery (R.C. 2907.03). Sexual battery in Ohio is one step removed from rape. The issue is consent – did he/she consent or not consent as a result of drugs or alcohol. There are other circumstances but this is what we call "The Date Rape Crime". Almost always it is male and female and the female cries foul the next day.
Luckily for Mr. Raber, the State agreed to amend the indictment to a misdemeanor count of Sexual Imposition (R.C. 2907.06). The difference between Sexual Battery and Sexual Imposition in Ohio is the act itself. Sexual Battery is sexual conduct (vaginal, anal, oral penetration) and Sexual Imposition is sexual contact (the touching of an erogenous area for purposes sexual gratification).
Now, the Raber Court had to deal with the thorny issue of sexual registration and misdemeanor sexual imposition. The SORN statute (Sexual Oriented Registration & Notification) statute in Ohio is found in R.C. 2950. Ohio Revised Code 2950.01(B)(a) does not require registration if the offense involved consensual sexual activity with another person over the age of 18. Therefore, the issue of consent carries the day for SORN.
The victim in Mr. Raber's case was not present for his sentencing. Mr. Raber argued that she did consent. The State introduced hearsay statements that she did not consent. Eventually, this issue was never resolved and the trial court entered judgment imposing a misdemeanor sentence on Mr. Raber. However, the trial court did not classify Mr. Raber as a sex offender and did not provide him with notice of a duty to register. Essentially, the registration issue faded.
Not so fast. 11 months later the trial court re-opened the case against Mr. Raber. The original judge gave it to another judge. That judge held an evidentiary hearing on the issue of consent. This time the alleged victim testified that anal sex was non-consensual. The judge found the alleged victim to be more believable and classified Mr. Raber a Tier I sex offender.
Mr. Raber appealed to the Ninth District citing Double Jeopardy. The Ninth District affirmed the lower court's decision so Raber appealed to the Ohio Supreme Court. Justice O'Donnell reversed the classification order finding that Jeopardy attached when the original trial judge imposed the sentence and filed the entry. The Ohio Supreme Court has already ruled that sexual registration is punishment (State v. Williams, 129 Ohio St.3d 344 (2011) and In re C.P. 131 Ohio St.3d 513). Once the defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited by the double jeopardy clause citing U.S. v. Fogel, 829 F.2d 77). Thus, Double Jeopardy prohibit the trial court from re-opening judgment entries of conviction.