Sub. S. B. No. 245 As Passed by the Senate

Senators Cates, Clancy, Mumper, Padgett, Schuring, Dann, Fedor, Zurz, Amstutz, Coughlin, Fingerhut, Harris, Hottinger, Kearney, Miller, R., Niehaus, Schuler, Spada, Armbruster, Carey, Austria

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
appear before the court before the court sets 9
bail, and to generally require the court to 10
consider certain factors before setting bail for 11
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

       Sec. 2907.41. (A) Subject to division (D) of this section, a 85
person who is charged with the commission of any sexually oriented 86
offense or with a violation of section 2907.09 of the Revised Code 87
shall appear before the court for the setting of bail if the 88
person charged previously was convicted of or pleaded guilty to a 89
sexually oriented offense, a violation of section 2907.09 of the 90
Revised Code, or a violation of an existing or former municipal 91
ordinance or law of this or any other state or the United States 92
that is substantially similar to section 2907.09 of the Revised 93
Code. 94

        (B) To the extent that information about any of the following 95
is available to the court, the court, in addition to any other 96
circumstances considered by the court and notwithstanding any 97
provisions to the contrary contained in Criminal Rule 46, shall 98
consider all of the following before setting bail for a person who 99
appears before the court pursuant to division (A) of this section: 100

        (1) Whether the person previously has been adjudicated a 101
sexual predator or child-victim predator pursuant to Chapter 2950. 102
of the Revised Code, previously has been determined to be a 103
habitual sex offender or habitual child-victim offender pursuant 104
to that Chapter, has a history of committing sexually oriented 105
offenses or child-victim oriented offenses, or has a history of 106
committing violations of section 2907.09 of the Revised Code or 107
violations 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; 110

        (2) The mental health of the person; 111

        (3) Whether the person has a history of violating the orders 112
of any court or governmental entity; 113

        (4) Whether the person is potentially a threat to any other 114
person; 115

        (5) Whether the person has access to deadly weapons or a 116
history of using deadly weapons; 117

        (6) Whether the person has a history of abusing alcohol or 118
any controlled substance; 119

        (7) The severity of the alleged conduct of the person that is 120
the basis of the offense, including but not limited to, the 121
duration of the alleged conduct, and whether the alleged conduct 122
involved physical injury, assault, violence, or forcible entry to 123
gain access to an alleged victim; 124

        (8) Whether the person has exhibited obsessive or controlling 125
behaviors toward another person, including, but not limited to, 126
stalking, surveillance, or isolation of another person; 127

        (9) Whether the person has expressed suicidal or homicidal 128
ideations; 129

        (10) Any information contained in the complaint and any 130
police reports, affidavits, or other documents accompanying the 131
complaint. 132

        (C) Any court that has jurisdiction over charges alleging the 133
commission of a sexually oriented offense or a violation of 134
section 2907.09 of the Revised Code, in circumstances in which the 135
person charged previously was convicted of or pleaded guilty to 136
any of the offenses or violations described in division (A) of 137
this section, may set a schedule for bail to be used in cases 138
involving those offenses and violations. The schedule shall 139
require that a judge consider all of the factors listed in 140
division (B) of this section and may require judges to set bail at 141
a certain level if the history of the alleged offender or the 142
circumstances of the alleged offense meet certain criteria in the 143
schedule. 144

        (D)(1) Upon the court's own motion or the motion of a party 145
and upon any terms that the court may direct, a court may permit a 146
person who is required to appear before it by division (A) of this 147
section to appear by video conferencing equipment. 148

        (2) If, in the opinion of the court, the appearance in person 149
or by video conferencing equipment of a person who is charged with 150
a misdemeanor and who is required to appear before the court by 151
division (A) of this section is not practicable, the court may 152
waive the appearance and release the person on bail in accordance 153
with the court's schedule for bail set under division (C) of this 154
section or, if the court has not set a schedule for bail under 155
that division, on one or both of the following types of bail in an 156
amount set by the court: 157

        (a) A bail bond secured by a deposit of ten per cent of the 158
amount of the bond in cash; 159

        (b) A surety bond, a bond secured by real estate or 160
securities as allowed by law, or the deposit of cash, at the 161
option of the person. 162

        (3) Division (A) of this section does not create a right in a 163
person to appear before the court for the setting of bail or 164
prohibit a court from requiring any person charged with a sexually 165
oriented offense or a violation of section 2907.09 of the Revised 166
Code who is not described in that division from appearing before 167
the court for the setting of bail. 168

        (E) As used in this section, "child-victim oriented offense," 169
"child-victim predator," "habitual child-victim offender," 170
"habitual sex offender," "sexually oriented offense," and "sexual 171
predator" have the same meanings as in section 2950.01 of the 172
Revised Code. 173

       Section 2. That existing section 2907.09 of the Revised Code 174
is hereby repealed. 175

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

Sec. 2907.41. (A) Subject to division (D) of this section, a	85
person who is charged with the commission of any sexually oriented	86
offense or with a violation of section 2907.09 of the Revised Code	87
shall appear before the court for the setting of bail if the	88
person charged previously was convicted of or pleaded guilty to a	89
sexually oriented offense, a violation of section 2907.09 of the	90
Revised Code, or a violation of an existing or former municipal	91
ordinance or law of this or any other state or the United States	92
that is substantially similar to section 2907.09 of the Revised	93
Code.	94

(B) To the extent that information about any of the following	95
is available to the court, the court, in addition to any other	96
circumstances considered by the court and notwithstanding any	97
provisions to the contrary contained in Criminal Rule 46, shall	98
consider all of the following before setting bail for a person who	99
appears before the court pursuant to division (A) of this section:	100

(1) Whether the person previously has been adjudicated a	101
sexual predator or child-victim predator pursuant to Chapter 2950.	102
of the Revised Code, previously has been determined to be a	103
habitual sex offender or habitual child-victim offender pursuant	104
to that Chapter, has a history of committing sexually oriented	105
offenses or child-victim oriented offenses, or has a history of	106
committing violations of section 2907.09 of the Revised Code or	107
violations 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;	110

(3) Whether the person has a history of violating the orders	112
of any court or governmental entity;	113

(4) Whether the person is potentially a threat to any other	114
person;	115

(5) Whether the person has access to deadly weapons or a	116
history of using deadly weapons;	117

(6) Whether the person has a history of abusing alcohol or	118
any controlled substance;	119

(7) The severity of the alleged conduct of the person that is	120
the basis of the offense, including but not limited to, the	121
duration of the alleged conduct, and whether the alleged conduct	122
involved physical injury, assault, violence, or forcible entry to	123
gain access to an alleged victim;	124

(8) Whether the person has exhibited obsessive or controlling	125
behaviors toward another person, including, but not limited to,	126
stalking, surveillance, or isolation of another person;	127

(9) Whether the person has expressed suicidal or homicidal	128
ideations;	129

(10) Any information contained in the complaint and any	130
police reports, affidavits, or other documents accompanying the	131
complaint.	132

(C) Any court that has jurisdiction over charges alleging the	133
commission of a sexually oriented offense or a violation of	134
section 2907.09 of the Revised Code, in circumstances in which the	135
person charged previously was convicted of or pleaded guilty to	136
any of the offenses or violations described in division (A) of	137
this section, may set a schedule for bail to be used in cases	138
involving those offenses and violations. The schedule shall	139
require that a judge consider all of the factors listed in	140
division (B) of this section and may require judges to set bail at	141
a certain level if the history of the alleged offender or the	142
circumstances of the alleged offense meet certain criteria in the	143
schedule.	144

(D)(1) Upon the court's own motion or the motion of a party	145
and upon any terms that the court may direct, a court may permit a	146
person who is required to appear before it by division (A) of this	147
section to appear by video conferencing equipment.	148

(2) If, in the opinion of the court, the appearance in person	149
or by video conferencing equipment of a person who is charged with	150
a misdemeanor and who is required to appear before the court by	151
division (A) of this section is not practicable, the court may	152
waive the appearance and release the person on bail in accordance	153
with the court's schedule for bail set under division (C) of this	154
section or, if the court has not set a schedule for bail under	155
that division, on one or both of the following types of bail in an	156
amount set by the court:	157

(a) A bail bond secured by a deposit of ten per cent of the	158
amount of the bond in cash;	159

(b) A surety bond, a bond secured by real estate or	160
securities as allowed by law, or the deposit of cash, at the	161
option of the person.	162

(3) Division (A) of this section does not create a right in a	163
person to appear before the court for the setting of bail or	164
prohibit a court from requiring any person charged with a sexually	165
oriented offense or a violation of section 2907.09 of the Revised	166
Code who is not described in that division from appearing before	167
the court for the setting of bail.	168

(E) As used in this section, "child-victim oriented offense,"	169
"child-victim predator," "habitual child-victim offender,"	170
"habitual sex offender," "sexually oriented offense," and "sexual	171
predator" have the same meanings as in section 2950.01 of the	172
Revised Code.	173

Section 2. That existing section 2907.09 of the Revised Code	174
is hereby repealed.	175