CSJ Report from Ohio Supreme Court: When Is a Sex Offender Not a Sex Offender?
Maybe Hollywood culture has impassioned us too much. We expect loud murmurings and banging from a gavel to restore order when we envision courtroom scenes. Largely, we expect drama, especially when it comes to sex crimes. The reality is that it is a subdued affair. At least it was this morning. There was a small and quiet crowd in the Supreme Court of Ohio this morning. Overall, it was a feeling of intrigue as the Court heard an important paradox of a question.
When is a sex offender not a sex offender?
This question was presented before the Supreme Court of Ohio in Travis Blankenship v. State of Ohio this morning. Specifically, the argument was made that mandatory sex offender classifications in Ohio constitutes a violation of the Eighth Amendment’s cruel and unusual punishment clause when the punishment does not fit the crime. Tyler Blankenship aged 21 had a sexual relationship with a 15 year old female. The teenage girl testified the relationship was consensual. Blankenship pled guilty to unlawful sexual conduct and served 12 days of a 6 month sentence. Additionally, he is to register as a Tier 2 Sex Offender based on Ohio law.
Ohio follows Adam Walsh compliance requirements. A Tier 2 Sex offender has to register his work, school, and employment with the sheriff in the county he lives. Blankenship is subject to verification every six month months for twenty five years. Blankenship’s lawyer argued 25 years of registration is tantamount to cruel and unusual punishment under the Eighth Amendment.
Both sides examined the cruel and unusual punishment clause through a two-prong analysis. First, they reviewed whether there is precedent for cruel and unusual punishment in regards to sex offender registration. Both sides acknowledged no precedent exists for cases similar to Blankenship. However, Blankenship’s lawyers point out that sex offender laws with varying restrictions have been passed since the 1990’s. Second, the court reviewed the totality of circumstances in his case. They considered the culpability of the offender, the ensuing punishment, and the justification for the punishment.
The crux of his lawyer’s argument rests on a psychosexual evaluation completed prior to Blankenship’s sentencing. The psychologist noted that while Blankenship had committed a sexually oriented offense, he was not a sex offender. Blankenship was not advised to undergo sex offender treatment therapy, but rather psychotherapy. Moreover, he was not deemed a risk to society. Blankenship’s lawyer maintained that Blankenship is part of a category that is hard to describe. Legally, they are sex offenders. Psychologically, they are not.
The psychologist cited Blankenship as a low recidivist. It was a one-time offense partially attributable to immaturity. Blankenship’s lawyer contended that it was a one-time offense and that no sex offender treatment was mandated as the underpinning for cruel and unusual punishment. Blankenship is not a threat to society and should not be labeled as such. His lawyer affirmed sex offender classification and registration for 25 years is cruel and unusual punishment because of the registration process and subsequent branding. Moreover, it is punitive because failing to register is a felony offense. Thus, Blankenship’s lawyer asserted that because he is not a risk to society registration was cruel and unusual.
The State’s Attorney disputed the recidivism rate cited and indicated the psychologist noted an increase of recidivism by 7% over a 5 year span. (Side note: Blankenship’s lawyer decried the increasing recidivism rate. She mentioned it was calculated using the Static-99. She indicated this ten-point checklist is not individualized and does not take mitigating factors into account.) Furthermore, the State’s Attorney argued a crime is a crime. Moreover, Blankenship contacted the underage girl a second time, even when ordered not to. This makes Blankenship more culpable. The State’s Attorney argued registration laws are in place to protect the public. They rebutted that if one is convicted of a sex offense, they are a sex offender even if there is a 0% chance of recidivism. Automatic registration does not equate cruel and unusual punishment. However, the State’s Attorney, when pressed by the Court, agreed the laws can be restrictive and punitive.
Registration as a sex offender, as the court noted, limits a registrant’s housing and employment options. Furthermore, there are other restrictions imposed. Justice O’Donnell reflected on the long-term effects of registration. Presumably, Blankenship will get married and have children. What is going to happen when he has to explain to his kids he is a sex offender? Will the kids be shamed as well and pay for a crime he committed because his registration is public? There are collateral consequences to registration exceeding housing and employment.
The judgment may be in favor of Blankenship. Surprisingly, the Court noted the punitive qualities of registration. The Court criticized the State’s Attorney for not presenting a convincing argument against cruel and unusual punishment. They had to ask what his point was in citing cases that had nothing to do with the matter at hand. Furthermore, the Court sees nothing wrong in having a hearing on an individual basis when the question arises. The cookie cutter approach currently in place is not particularly effective.
It was interesting to note the justices reflecting on the implications of shame and restrictions due to the registry. This is a hard uphill fight. Favoring the registrant is unprecedented in court proceedings. To date, there has been no favorable judgment that registration constitutes cruel and unusual punishment. The problem the justices face is determining who fits in the category of offenders that Blankenship’s lawyer suggests: when is a sex offender not a sex offender? No precedent has been set in this uncharted territory.
Travis Blankenship v. State of Ohio, Case no. 2014-0363
Second District Court of Appeals (Clark County)