S. B. No. 245 As Introduced

Senators Cates, Clancy, Grendell, Mumper, Padgett, Schuring, Dann, Fedor, Zurz

A BILL

To amend section 2907.09 and to enact section 2907.41 1
of the Revised Code to generally increase the 2
penalties for public indecency when the victim is 3
a minor and the offender has a previous public 4
indecency conviction, to require that a person 5
charged with a sexually oriented offense or with 6
public indecency who has a previous conviction of 7
a sexually oriented offense or of public indecency 8
was committed with a sexual motivation appear 9
before the court before the court sets bail, and 10
to generally require the court to consider certain 11
factors before setting bail for that person. 12

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That section 2907.09 be amended and section 13
2907.41 of the Revised Code be enacted to read as follows: 14

       Sec. 2907.09. (A) No person shall recklessly do any of the 15
following, under circumstances in which the person's conduct is 16
likely to be viewed by and affront others who are in the person's 17
physical proximity and who are not members of the person's 18
household: 19

       (1) Expose ~~his or her~~the person's private parts; 20

       (2) Engage in sexual conduct or masturbation; 21

       (3) Engage in conduct that to an ordinary observer would 22
appear to be sexual conduct or masturbation. 23

       (B) No person shall knowingly do any of the following, under 24
circumstances in which the person's conduct is likely to be viewed 25
by and affront another person who is a minor, who is not the 26
spouse of the offender, and who resides in the person's household: 27

       (1) Engage in masturbation; 28

       (2) Engage in sexual conduct; 29

       (3) Engage in conduct that to an ordinary observer would 30
appear to be sexual conduct or masturbation; 31

       (4) Expose the person's private parts with the purpose of 32
personal sexual arousal or gratification or to lure the minor into 33
sexual activity. 34

       (C)(1) Whoever violates this section is guilty of public 35
indecency and shall be punished as provided in divisions (C)(2), 36
(3), (4), and (5) of this section. 37

       (2) Except as otherwise provided in division (C)(2) of this 38
section, a violation of division (A)(1) of this section is a 39
misdemeanor of the fourth degree. If the offender previously has 40
been convicted of or pleaded guilty to one violation of this 41
section, a violation of division (A)(1) of this section is a 42
misdemeanor of the third degree or, if any person who was likely 43
to view and be affronted by the offender's conduct was a minor, a 44
misdemeanor of the second degree. If the offender previously has 45
been convicted of or pleaded guilty to two violations of this 46
section, a violation of division (A)(1) of this section is a 47
misdemeanor of the second degree or, if any person who was likely 48
to view and be affronted by the offender's conduct was a minor, a 49
misdemeanor of the first degree. If the offender previously has 50
been convicted of or pleaded guilty to three or more violations of 51
this section, a violation of division (A)(1) of this section is a 52
misdemeanor of the first degree or, if any person who was likely 53
to view and be affronted by the offender's conduct was a minor, a 54
felony of the fifth degree. 55

       (3) Except as otherwise provided in division (C)(3) of this 56
section, a violation of division (A)(2) or (3) of this section is 57
a misdemeanor of the third degree. If the offender previously has 58
been convicted of or pleaded guilty to one violation of this 59
section, a violation of division (A)(2) or (3) of this section is 60
a misdemeanor of the second degree or, if any person who was 61
likely to view and be affronted by the offender's conduct was a 62
minor, a misdemeanor of the first degree. If the offender 63
previously has been convicted of or pleaded guilty to two or more 64
violations of this section, a violation of division (A)(2) or (3) 65
of this section is a misdemeanor of the first degree or, if any 66
person who was likely to view and be affronted by the offender's 67
conduct was a minor, a felony of the fifth degree. 68

        (4) Except as otherwise provided in division (C)(4) of this 69
section, a violation of division (B)(1), (2), or (3) of this 70
section is a misdemeanor of the second degree. If the offender 71
previously has been convicted of or pleaded guilty to ~~any~~one 72
violation of this section, a violation of division (B)(1), (2), or 73
(3) of this section is a misdemeanor of the first degree. If the 74
offender previously has been convicted of or pleaded guilty to two 75
or more violations of this section, a violation of division 76
(B)(1), (2), or (3) of this section is a felony of the fifth 77
degree. 78

        (5) AExcept as otherwise provided in division (C)(5) of this 79
section, a violation of division (B)(4) of this section is a 80
misdemeanor of the first degree. If the offender previously has 81
been convicted of or pleaded guilty to any violation of this 82
section, a violation of division (B)(4) of this section is a 83
felony of the fifth degree. 84

        (D) If a person is convicted of or pleads guilty to a 85
violation of division (A)(2), (B)(1), (B)(2), or (B)(4) of this 86
section, for purposes of this division, the conviction or guilty 87
plea automatically serves as a finding by the judge that the 88
offender committed the violation with a sexual motivation. If a 89
person is convicted of or pleads guilty to a violation of division 90
(A)(1), (A)(3), or (B)(3) of this section, the judge or jury as 91
trier of fact shall determine whether the offender committed the 92
violation with a sexual motivation. If the judge or jury finds, as 93
described in this division, that an offender convicted of a 94
violation of division (A) or (B) of this section committed the 95
violation with a sexual motivation, the court shall specify in the 96
offender's sentence and the judgment of conviction that contains 97
the sentence that the judge or jury has found that the offender 98
committed the violation with a sexual motivation. 99

       Sec. 2907.41. (A) Subject to division (D) of this section, a 100
person who is charged with the commission of any sexually oriented 101
offense or with a violation of section 2907.09 of the Revised Code 102
shall appear before the court for the setting of bail if the 103
person charged previously was convicted of or pleaded guilty to 104
any of the following: 105

        (1) A sexually oriented offense; 106

        (2) A violation of section 2907.09 of the Revised Code or a 107
violation of an existing or former municipal ordinance or law of 108
this or any other state or the United States that is substantially 109
similar to that section in a case in which the trier of fact found 110
that the offender committed the violation with a sexual 111
motivation. 112

        (B) To the extent that information about any of the following 113
is available to the court, the court, in addition to any other 114
circumstances considered by the court and notwithstanding any 115
provisions to the contrary contained in Criminal Rule 46, shall 116
consider all of the following before setting bail for a person who 117
appears before the court pursuant to division (A) of this section: 118

        (1) Whether the person previously has been adjudicated a 119
sexual predator or child-victim predator pursuant to Chapter 2950. 120
of the Revised Code, previously has been determined to be a 121
habitual sex offender or habitual child-victim offender pursuant 122
to that Chapter, has a history of committing sexually oriented 123
offenses or child-victim oriented offenses, or has a history of 124
committing with a sexual motivation violations of section 2907.09 125
of the Revised Code or violations of an existing or former 126
municipal ordinance or law of this or any other state or the 127
United States that is substantially similar to that section; 128

        (2) The mental health of the person; 129

        (3) Whether the person has a history of violating the orders 130
of any court or governmental entity; 131

        (4) Whether the person is potentially a threat to any other 132
person; 133

        (5) Whether the person has access to deadly weapons or a 134
history of using deadly weapons; 135

        (6) Whether the person has a history of abusing alcohol or 136
any controlled substance; 137

        (7) The severity of the alleged conduct of the person that is 138
the basis of the offense, including but not limited to, the 139
duration of the alleged conduct, and whether the alleged conduct 140
involved physical injury, assault, violence, or forcible entry to 141
gain access to an alleged victim; 142

        (8) Whether the person has exhibited obsessive or controlling 143
behaviors toward another person, including, but not limited to, 144
stalking, surveillance, or isolation of another person; 145

        (9) Whether the person has expressed suicidal or homicidal 146
ideations; 147

        (10) Any information contained in the complaint and any 148
police reports, affidavits, or other documents accompanying the 149
complaint. 150

        (C) Any court that has jurisdiction over charges alleging the 151
commission of a sexually oriented offense or a violation of 152
section 2907.09 of the Revised Code, in circumstances in which the 153
person charged previously was convicted of or pleaded guilty to 154
any of the offenses or violations described in divisions (A)(1) 155
and (2) of this section, may set a schedule for bail to be used in 156
cases involving those offenses and violations. The schedule shall 157
require that a judge consider all of the factors listed in 158
division (B) of this section and may require judges to set bail at 159
a certain level if the history of the alleged offender or the 160
circumstances of the alleged offense meet certain criteria in the 161
schedule. 162

        (D)(1) Upon the court's own motion or the motion of a party 163
and upon any terms that the court may direct, a court may permit a 164
person who is required to appear before it by division (A) of this 165
section to appear by video conferencing equipment. 166

        (2) If, in the opinion of the court, the appearance in person 167
or by video conferencing equipment of a person who is charged with 168
a misdemeanor and who is required to appear before the court by 169
division (A) of this section is not practicable, the court may 170
waive the appearance and release the person on bail in accordance 171
with the court's schedule for bail set under division (C) of this 172
section or, if the court has not set a schedule for bail under 173
that division, on one or both of the following types of bail in an 174
amount set by the court: 175

        (a) A bail bond secured by a deposit of ten per cent of the 176
amount of the bond in cash; 177

        (b) A surety bond, a bond secured by real estate or 178
securities as allowed by law, or the deposit of cash, at the 179
option of the person. 180

        (3) Division (A) of this section does not create a right in a 181
person to appear before the court for the setting of bail or 182
prohibit a court from requiring any person charged with a sexually 183
oriented offense or a violation of section 2907.09 of the Revised 184
Code who is not described in that division from appearing before 185
the court for the setting of bail. 186

        (E) As used in this section, "child-victim offense," 187
"child-victim predator," "habitual child-victim offender," 188
"habitual sex offender," "sexually oriented offense," "sexual 189
motivation," and "sexual predator" have the same meanings as in 190
section 2950.01 of the Revised Code. 191

       Section 2. That existing section 2907.09 of the Revised Code 192
is hereby repealed. 193

Section 1. That section 2907.09 be amended and section	13
2907.41 of the Revised Code be enacted to read as follows:	14

Sec. 2907.09. (A) No person shall recklessly do any of the	15
following, under circumstances in which the person's conduct is	16
likely to be viewed by and affront others who are in the person's	17
physical proximity and who are not members of the person's	18
household:	19

(3) Engage in conduct that to an ordinary observer would	22
appear to be sexual conduct or masturbation.	23

(B) No person shall knowingly do any of the following, under	24
circumstances in which the person's conduct is likely to be viewed	25
by and affront another person who is a minor, who is not the	26
spouse of the offender, and who resides in the person's household:	27

(4) Expose the person's private parts with the purpose of	32
personal sexual arousal or gratification or to lure the minor into	33
sexual activity.	34

(C)(1) Whoever violates this section is guilty of public	35
indecency and shall be punished as provided in divisions (C)(2),	36
(3), (4), and (5) of this section.	37

(2) Except as otherwise provided in division (C)(2) of this	38
section, a violation of division (A)(1) of this section is a	39
misdemeanor of the fourth degree. If the offender previously has	40
been convicted of or pleaded guilty to one violation of this	41
section, a violation of division (A)(1) of this section is a	42
misdemeanor of the third degree or, if any person who was likely	43
to view and be affronted by the offender's conduct was a minor, a	44
misdemeanor of the second degree. If the offender previously has	45
been convicted of or pleaded guilty to two violations of this	46
section, a violation of division (A)(1) of this section is a	47
misdemeanor of the second degree or, if any person who was likely	48
to view and be affronted by the offender's conduct was a minor, a	49
misdemeanor of the first degree. If the offender previously has	50
been convicted of or pleaded guilty to three or more violations of	51
this section, a violation of division (A)(1) of this section is a	52
misdemeanor of the first degree or, if any person who was likely	53
to view and be affronted by the offender's conduct was a minor, a	54
felony of the fifth degree.	55

(3) Except as otherwise provided in division (C)(3) of this	56
section, a violation of division (A)(2) or (3) of this section is	57
a misdemeanor of the third degree. If the offender previously has	58
been convicted of or pleaded guilty to one violation of this	59
section, a violation of division (A)(2) or (3) of this section is	60
a misdemeanor of the second degree or, if any person who was	61
likely to view and be affronted by the offender's conduct was a	62
minor, a misdemeanor of the first degree. If the offender	63
previously has been convicted of or pleaded guilty to two or more	64
violations of this section, a violation of division (A)(2) or (3)	65
of this section is a misdemeanor of the first degree or, if any	66
person who was likely to view and be affronted by the offender's	67
conduct was a minor, a felony of the fifth degree.	68

(4) Except as otherwise provided in division (C)(4) of this	69
section, a violation of division (B)(1), (2), or (3) of this	70
section is a misdemeanor of the second degree. If the offender	71
previously has been convicted of or pleaded guilty to ~~any~~one	72
violation of this section, a violation of division (B)(1), (2), or	73
(3) of this section is a misdemeanor of the first degree. If the	74
offender previously has been convicted of or pleaded guilty to two	75
or more violations of this section, a violation of division	76
(B)(1), (2), or (3) of this section is a felony of the fifth	77
degree.	78

(5) AExcept as otherwise provided in division (C)(5) of this	79
section, a violation of division (B)(4) of this section is a	80
misdemeanor of the first degree. If the offender previously has	81
been convicted of or pleaded guilty to any violation of this	82
section, a violation of division (B)(4) of this section is a	83
felony of the fifth degree.	84

(D) If a person is convicted of or pleads guilty to a	85
violation of division (A)(2), (B)(1), (B)(2), or (B)(4) of this	86
section, for purposes of this division, the conviction or guilty	87
plea automatically serves as a finding by the judge that the	88
offender committed the violation with a sexual motivation. If a	89
person is convicted of or pleads guilty to a violation of division	90
(A)(1), (A)(3), or (B)(3) of this section, the judge or jury as	91
trier of fact shall determine whether the offender committed the	92
violation with a sexual motivation. If the judge or jury finds, as	93
described in this division, that an offender convicted of a	94
violation of division (A) or (B) of this section committed the	95
violation with a sexual motivation, the court shall specify in the	96
offender's sentence and the judgment of conviction that contains	97
the sentence that the judge or jury has found that the offender	98
committed the violation with a sexual motivation.	99

Sec. 2907.41. (A) Subject to division (D) of this section, a	100
person who is charged with the commission of any sexually oriented	101
offense or with a violation of section 2907.09 of the Revised Code	102
shall appear before the court for the setting of bail if the	103
person charged previously was convicted of or pleaded guilty to	104
any of the following:	105

(2) A violation of section 2907.09 of the Revised Code or a	107
violation of an existing or former municipal ordinance or law of	108
this or any other state or the United States that is substantially	109
similar to that section in a case in which the trier of fact found	110
that the offender committed the violation with a sexual	111
motivation.	112

(B) To the extent that information about any of the following	113
is available to the court, the court, in addition to any other	114
circumstances considered by the court and notwithstanding any	115
provisions to the contrary contained in Criminal Rule 46, shall	116
consider all of the following before setting bail for a person who	117
appears before the court pursuant to division (A) of this section:	118

(1) Whether the person previously has been adjudicated a	119
sexual predator or child-victim predator pursuant to Chapter 2950.	120
of the Revised Code, previously has been determined to be a	121
habitual sex offender or habitual child-victim offender pursuant	122
to that Chapter, has a history of committing sexually oriented	123
offenses or child-victim oriented offenses, or has a history of	124
committing with a sexual motivation violations of section 2907.09	125
of the Revised Code or violations of an existing or former	126
municipal ordinance or law of this or any other state or the	127
United States that is substantially similar to that section;	128

(3) Whether the person has a history of violating the orders	130
of any court or governmental entity;	131

(4) Whether the person is potentially a threat to any other	132
person;	133

(5) Whether the person has access to deadly weapons or a	134
history of using deadly weapons;	135

(6) Whether the person has a history of abusing alcohol or	136
any controlled substance;	137

(7) The severity of the alleged conduct of the person that is	138
the basis of the offense, including but not limited to, the	139
duration of the alleged conduct, and whether the alleged conduct	140
involved physical injury, assault, violence, or forcible entry to	141
gain access to an alleged victim;	142

(8) Whether the person has exhibited obsessive or controlling	143
behaviors toward another person, including, but not limited to,	144
stalking, surveillance, or isolation of another person;	145

(9) Whether the person has expressed suicidal or homicidal	146
ideations;	147

(10) Any information contained in the complaint and any	148
police reports, affidavits, or other documents accompanying the	149
complaint.	150

(C) Any court that has jurisdiction over charges alleging the	151
commission of a sexually oriented offense or a violation of	152
section 2907.09 of the Revised Code, in circumstances in which the	153
person charged previously was convicted of or pleaded guilty to	154
any of the offenses or violations described in divisions (A)(1)	155
and (2) of this section, may set a schedule for bail to be used in	156
cases involving those offenses and violations. The schedule shall	157
require that a judge consider all of the factors listed in	158
division (B) of this section and may require judges to set bail at	159
a certain level if the history of the alleged offender or the	160
circumstances of the alleged offense meet certain criteria in the	161
schedule.	162

(D)(1) Upon the court's own motion or the motion of a party	163
and upon any terms that the court may direct, a court may permit a	164
person who is required to appear before it by division (A) of this	165
section to appear by video conferencing equipment.	166

(2) If, in the opinion of the court, the appearance in person	167
or by video conferencing equipment of a person who is charged with	168
a misdemeanor and who is required to appear before the court by	169
division (A) of this section is not practicable, the court may	170
waive the appearance and release the person on bail in accordance	171
with the court's schedule for bail set under division (C) of this	172
section or, if the court has not set a schedule for bail under	173
that division, on one or both of the following types of bail in an	174
amount set by the court:	175

(a) A bail bond secured by a deposit of ten per cent of the	176
amount of the bond in cash;	177

(b) A surety bond, a bond secured by real estate or	178
securities as allowed by law, or the deposit of cash, at the	179
option of the person.	180

(3) Division (A) of this section does not create a right in a	181
person to appear before the court for the setting of bail or	182
prohibit a court from requiring any person charged with a sexually	183
oriented offense or a violation of section 2907.09 of the Revised	184
Code who is not described in that division from appearing before	185
the court for the setting of bail.	186

(E) As used in this section, "child-victim offense,"	187
"child-victim predator," "habitual child-victim offender,"	188
"habitual sex offender," "sexually oriented offense," "sexual	189
motivation," and "sexual predator" have the same meanings as in	190
section 2950.01 of the Revised Code.	191