To amend sections 2950.09 and 2950.12 of the Revised Code regarding sexual predator hearings for offenders convicted of a sexually oriented offense but acquitted of a sexually violent predator specification, regarding Department of Rehabilitation and Correction employees' immunity for acts under the Sex Offender Registration and Notification Law, and to declare an emergency.

Section 1. That sections 2950.09 and 2950.12 of the Revised Code be amended to read as follows:

Sec. 2950.09. (A) If a person is convicted of or pleads guilty to committing, on or after January 1, 1997, a sexually oriented offense that is a sexually violent offense and also is convicted of or pleads guilty to a sexually violent predator specification that was included in the indictment, count in the indictment, or information charging the sexually violent offense, the conviction of or plea of guilty to the specification automatically classifies the offender as a sexual predator for purposes of this chapter. If a person is convicted of, pleads guilty to, or is adjudicated a delinquent child for committing, a sexually oriented offense in another state, or in a federal court, military court, or an Indian tribal court and if, as a result of that conviction, plea of guilty, or adjudication, the person is required, under the law of the jurisdiction in which the person was convicted, pleaded guilty, or was adjudicated, to register as a sex offender until the person's death and is required to verify the person's address on at least a quarterly basis each year, that conviction, plea of guilty, or adjudication automatically classifies the person as a sexual predator for the purposes of this chapter, but the person may challenge that classification pursuant to division (F) of this section. In all other cases, a person who is convicted of or pleads guilty to, has been convicted of or pleaded guilty to, or is adjudicated a delinquent child for committing, a sexually oriented offense may be classified as a sexual predator for purposes of this chapter only in accordance with division (B) or (C) of this section or, regarding delinquent children, divisions (B) and (C) of section 2152.83 of the Revised Code.

(B)(1) The judge who is to impose sentence on a person who is convicted of or pleads guilty to a sexually oriented offense or the judge who is to impose or has imposed, pursuant to section 2152.82 or division (A) of section 2152.83 of the Revised Code, an order of disposition upon a child who is adjudicated a delinquent child for committing on or after the effective date of this amendment January 1, 2002, a sexually oriented offense shall conduct a hearing to determine whether the offender is a sexual predator if any of the following circumstances apply:

(a) Regardless of when the sexually oriented offense was committed, the offender is to be sentenced on or after January 1, 1997, for a sexually oriented offense that is not a sexually violent offense.

(b) Regardless of when the sexually oriented offense was committed, the offender is to be sentenced on or after January 1, 1997, for a sexually oriented offense that is a sexually violent offense and a sexually violent predator specification was not included in the indictment, count in the indictment, or information charging the sexually violent offense.

(c) The delinquent child was classified a juvenile sex offender registrant pursuant to section 2152.82 or division (A) of section 2152.83 of the Revised Code. A judge shall not conduct a hearing under division (B) of this section regarding a delinquent child unless the delinquent child is in the category of delinquent children described in this division.

(d) Regardless of when the sexually oriented offense was committed, the offender is to be sentenced on or after the effective date of this amendment for a sexually oriented offense, and that offender was acquitted of a sexually violent predator specification that was included in the indictment, count in the indictment, or information charging the sexually oriented offense.

(2) The judge shall conduct the hearing prior to sentencing and, if the sexually oriented offense is a felony and if the hearing is being conducted under division (B)(1)(a) or, (b), or (c) of this section, the judge may conduct it as part of the sentencing hearing required by section 2929.19 of the Revised Code. The court shall give the offender or delinquent child and the prosecutor who prosecuted the offender or handled the case against the delinquent child for the sexually oriented offense notice of the date, time, and location of the hearing. At the hearing, the offender or delinquent child and the prosecutor shall have an opportunity to testify, present evidence, call and examine witnesses and expert witnesses, and cross-examine witnesses and expert witnesses regarding the determination as to whether the offender or delinquent child is a sexual predator. The offender or delinquent child shall have the right to be represented by counsel and, if indigent, the right to have counsel appointed to represent the offender or delinquent child.

(3) In making a determination under divisions (B)(1) and (4) of this section as to whether an offender or delinquent child is a sexual predator, the judge shall consider all relevant factors, including, but not limited to, all of the following:

(a) The offender's or delinquent child's age;

(b) The offender's or delinquent child's prior criminal or delinquency record regarding all offenses, including, but not limited to, all sexual offenses;

(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made;

(d) Whether the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made involved multiple victims;

(e) Whether the offender or delinquent child used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting;

(f) If the offender or delinquent child previously has been convicted of or pleaded guilty to, or been adjudicated a delinquent child for committing an act that if committed by an adult would be, a criminal offense, whether the offender or delinquent child completed any sentence or dispositional order imposed for the prior offense or act and, if the prior offense or act was a sex offense or a sexually oriented offense, whether the offender or delinquent child participated in available programs for sexual offenders;

(g) Any mental illness or mental disability of the offender or delinquent child;

(h) The nature of the offender's or delinquent child's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse;

(i) Whether the offender or delinquent child, during the commission of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made, displayed cruelty or made one or more threats of cruelty;

(j) Any additional behavioral characteristics that contribute to the offender's or delinquent child's conduct.

(4) After reviewing all testimony and evidence presented at the hearing conducted under division (B)(1) of this section and the factors specified in division (B)(3) of this section, the court shall determine by clear and convincing evidence whether the subject offender or delinquent child is a sexual predator. If the court determines that the subject offender or delinquent child is not a sexual predator, the court shall specify in the offender's sentence and the judgment of conviction that contains the sentence or in the delinquent child's dispositional order, as appropriate, that the court has determined that the offender or delinquent child is not a sexual predator. If the court determines by clear and convincing evidence that the subject offender or delinquent child is a sexual predator, the court shall specify in the offender's sentence and the judgment of conviction that contains the sentence or in the delinquent child's dispositional order, as appropriate, that the court has determined that the offender or delinquent child is a sexual predator and shall specify that the determination was pursuant to division (B) of this section. The offender or delinquent child and the prosecutor who prosecuted the offender or handled the case against the delinquent child for the sexually oriented offense in question may appeal as a matter of right the court's determination under this division as to whether the offender or delinquent child is, or is not, a sexual predator.

(5) A hearing shall not be conducted under division (B) of this section regarding an offender if the sexually oriented offense in question is a sexually violent offense and, if the indictment, count in the indictment, or information charging the offense also included a sexually violent predator specification, and if the offender is convicted of or pleads guilty to that sexually violent predator specification.

(C)(1) If a person was convicted of or pleaded guilty to a sexually oriented offense prior to January 1, 1997, if the person was not sentenced for the offense on or after January 1, 1997, and if, on or after January 1, 1997, the offender is serving a term of imprisonment in a state correctional institution, the department of rehabilitation and correction shall determine whether to recommend that the offender be adjudicated as being a sexual predator. In making a determination under this division as to whether to recommend that the offender be adjudicated as being a sexual predator, the department shall consider all relevant factors, including, but not limited to, all of the factors specified in division (B)(2) of this section. If the department determines that it will recommend that the offender be adjudicated as being a sexual predator, it immediately shall send the recommendation to the court that sentenced the offender and shall enter its determination and recommendation in the offender's institutional record, and the court shall proceed in accordance with division (C)(2) of this section.

(2)(a) If, pursuant to division (C)(1) of this section, the department of rehabilitation and correction sends to a court a recommendation that an offender who has been convicted of or pleaded guilty to a sexually oriented offense be adjudicated as being a sexual predator, the court is not bound by the department's recommendation, and the court may conduct a hearing to determine whether the offender is a sexual predator. The court may deny the recommendation and determine that the offender is not a sexual predator without a hearing but shall not make a determination that the offender is a sexual predator in any case without a hearing. The court may hold the hearing and make the determination prior to the offender's release from imprisonment or at any time within one year following the offender's release from that imprisonment. If the court determines without a hearing that the offender is not a sexual predator, it shall include its determination in the offender's institutional record and shall determine whether the offender previously has been convicted of or pleaded guilty to a sexually oriented offense other than the offense in relation to which the court determined that the offender is not a sexual predator.

The court may make the determination as to whether the offender previously has been convicted of or pleaded guilty to a sexually oriented offense without a hearing, but, if the court determines that the offender previously has been convicted of or pleaded guilty to such an offense, it shall not impose a requirement that the offender be subject to the community notification provisions regarding the offender's place of residence that are contained in sections 2950.10 and 2950.11 of the Revised Code without a hearing. The court may conduct a hearing to determine both whether the offender previously has been convicted of or pleaded guilty to a sexually oriented offense and whether to impose a requirement that the offender be subject to the community notification provisions as described in this division, or may conduct a hearing solely to make the latter determination. The court shall include in the offender's institutional record any determination made under this division as to whether the offender previously has been convicted of or pleaded guilty to a sexually oriented offense, and, as such, whether the offender is a habitual sex offender.

(b) If the court schedules a hearing under division (C)(2)(a) of this section, the court shall give the offender and the prosecutor who prosecuted the offender for the sexually oriented offense, or that prosecutor's successor in office, notice of the date, time, and place of the hearing. If the hearing is to determine whether the offender is a sexual predator, it shall be conducted in the manner described in division (B)(1) of this section regarding hearings conducted under that division and, in making a determination under this division as to whether the offender is a sexual predator, the court shall consider all relevant factors, including, but not limited to, all of the factors specified in division (B)(2) of this section. After reviewing all testimony and evidence presented at the sexual predator hearing and the factors specified in division (B)(2) of this section, the court shall determine by clear and convincing evidence whether the offender is a sexual predator. If the court determines that the offender is not a sexual predator, it also shall determine whether the offender previously has been convicted of or pleaded guilty to a sexually oriented offense other than the offense in relation to which the hearing is being conducted.

Upon making its determinations at the hearing, the court shall proceed as follows:

(i) If the hearing is to determine whether the offender is a sexual predator, and if the court determines that the offender is not a sexual predator and that the offender previously has not been convicted of or pleaded guilty to a sexually oriented offense other than the offense in relation to which the hearing is being conducted, it shall include its determinations in the offender's institutional record.

(ii) If the hearing is to determine whether the offender is a sexual predator, and if the court determines that the offender is not a sexual predator but that the offender previously has been convicted of or pleaded guilty to a sexually oriented offense other than the offense in relation to which the hearing is being conducted, it shall include its determination that the offender is not a sexual predator but is a habitual sex offender in the offender's institutional record, shall attach the determinations to the offender's sentence, shall specify that the determinations were pursuant to division (C) of this section, shall provide a copy of the determinations to the offender, to the prosecuting attorney, and to the department of rehabilitation and correction, and may impose a requirement that the offender be subject to the community notification provisions regarding the offender's place of residence that are contained in sections 2950.10 and 2950.11 of the Revised Code. The offender shall not be subject to those community notification provisions relative to the sexually oriented offense in question if the court does not so impose the requirement described in this division. If the court imposes those community notification provisions, the offender may appeal the judge's determination that the offender is a habitual sex offender.

(iii) If the hearing is to determine whether the offender previously has been convicted of or pleaded guilty to a sexually oriented offense other than the offense in relation to which the hearing is being conducted and whether to impose a requirement that the offender be subject to the specified community notification provisions, and if the court determines that the offender previously has been convicted of or pleaded guilty to such an offense, the court shall proceed as described in division (C)(2)(b)(ii) of this section and may impose a community notification requirement as described in that division. The offender shall not be subject to the specified community notification provisions relative to the sexually oriented offense in question if the court does not so impose the requirement described in that division. If the court imposes those community notification provisions, the offender may appeal the judge's determination that the offender is a habitual sex offender.

(iv) If the court determined without a hearing that the offender previously has been convicted of or pleaded guilty to a sexually oriented offense other than the offense in relation to which the court determined that the offender is not a sexual predator, and, as such, is a habitual sex offender, and the hearing is solely to determine whether to impose a requirement that the offender be subject to the specified community notification provisions, after the hearing, the court may impose a community notification requirement as described in division (C)(2)(b)(ii) of this section. The offender shall not be subject to the specified community notification provisions relative to the sexually oriented offense in question if the court does not so impose the requirement described in that division. If the court imposes those community notification provisions, the offender may appeal the judge's determination that the offender is a habitual sex offender.

(v) If the hearing is to determine whether the offender is a sexual predator, and if the court determines by clear and convincing evidence that the offender is a sexual predator, it shall enter its determination in the offender's institutional record, shall attach the determination to the offender's sentence, shall specify that the determination was pursuant to division (C) of this section, and shall provide a copy of the determination to the offender, to the prosecuting attorney, and to the department of rehabilitation and correction. The offender and the prosecutor may appeal as a matter of right the judge's determination under this division as to whether the offender is, or is not, a sexual predator.

(D)(1) Division (D) of this section applies to persons who have been convicted of or pleaded guilty to a sexually oriented offense. The procedures set forth in division (D) of this section regarding a determination of whether a person no longer is a sexual predator also apply, to the extent specified in section 2152.84 or 2152.85 of the Revised Code, to persons who have been adjudicated a delinquent child for committing a sexually oriented offense and have been determined by a juvenile court judge to be a sexual predator. A person who has been adjudicated a delinquent child for committing a sexually oriented offense and who has been classified by a juvenile court judge a juvenile sex offender registrant or, if applicable, additionally has been determined by a juvenile court judge to be a sexual predator or habitual sex offender, may petition the adjudicating court for a reclassification or declassification pursuant to section 2152.85 of the Revised Code.

Upon the expiration of the applicable period of time specified in division (D)(1)(a) or (b) of this section, an offender who has been convicted of or pleaded guilty to a sexually oriented offense and who has been adjudicated as being a sexual predator relative to the sexually oriented offense in the manner described in division (B) or (C) of this section may petition the judge who made the determination that the offender was a sexual predator, or that judge's successor in office, to enter a determination that the offender no longer is a sexual predator. Upon the filing of the petition, the judge may review the prior sexual predator determination that comprises the sexually violent sexual predator adjudication, and, upon consideration of all relevant evidence and information, including, but not limited to, the factors set forth in division (B)(3) of this section, either shall enter a determination that the offender no longer is a sexual predator or shall enter an order denying the petition. The judge shall not enter a determination under this division that the offender no longer is a sexual predator unless the judge determines by clear and convincing evidence that the offender is unlikely to commit a sexually oriented offense in the future. If the judge enters a determination under this division that the offender no longer is a sexual predator, the judge shall notify the bureau of criminal identification and investigation and the parole board of the determination. Upon receipt of the notification, the bureau promptly shall notify the sheriff with whom the offender most recently registered under section 2950.04 or 2950.05 of the Revised Code of the determination that the offender no longer is a sexual predator. If the judge enters an order denying the petition, the prior adjudication of the offender as a sexual predator shall remain in effect. An offender determined to be a sexual predator in the manner described in division (B) or (C) of this section may file a petition under this division after the expiration of the following periods of time:

(a) Regardless of when the sexually oriented offense was committed, if, on or after January 1, 1997, the offender is imprisoned or sentenced to a prison term or other confinement for the sexually oriented offense in relation to which the determination was made, the offender initially may file the petition not earlier than one year prior to the offender's release from the imprisonment, prison term, or other confinement by discharge, parole, judicial release, or any other final release. If the offender is sentenced on or after January 1, 1997, for the sexually oriented offense in relation to which the determination is made and is not imprisoned or sentenced to a prison term or other confinement for the sexually oriented offense, the offender initially may file the petition upon the expiration of one year after the entry of the offender's judgment of conviction.

(b) After the offender's initial filing of a petition under division (D)(1)(a) of this section, thereafter, an offender may file a petition under this division upon the expiration of five years after the court has entered an order denying the petition under division (D)(1)(a) of this section or the most recent petition the offender has filed under this division.

(2) Except as otherwise provided in this division, division (D)(1) of this section does not apply to a person who is classified as a sexual predator pursuant to division (A) of this section. If a person who is so classified was sentenced to a prison term pursuant to division (A)(3) of section 2971.03 of the Revised Code and if the sentencing court terminates the offender's prison term as provided in division (D) of section 2971.05 of the Revised Code, the court's termination of the prison term automatically shall constitute a determination by the court that the offender no longer is a sexual predator. If the court so terminates the offender's prison term, the court shall notify the bureau of criminal identification and investigation and the parole board of the determination that the offender no longer is a sexual predator. Upon receipt of the notification, the bureau promptly shall notify the sheriff with whom the offender most recently registered under section 2950.04 or 2950.05 of the Revised Code that the offender no longer is a sexual predator. If an offender who is classified as a sexual predator pursuant to division (A) of this section is released from prison pursuant to a pardon or commutation, the classification of the offender as a sexual predator shall remain in effect after the offender's release, and the offender may file one or more petitions in accordance with the procedures and time limitations contained in division (D)(1) of this section for a determination that the offender no longer is a sexual predator.

(E) If a person is convicted of or pleads guilty to committing, on or after January 1, 1997, a sexually oriented offense, the judge who is to impose sentence on the offender shall determine, prior to sentencing, whether the offender previously has been convicted of or pleaded guilty to a sexually oriented offense. If a person is classified a juvenile sex offender registrant, pursuant to section 2152.82 or division (A) of section 2152.83 of the Revised Code, the adjudicating judge shall determine, prior to entering the order classifying the delinquent child a juvenile sex offender registrant, whether the delinquent child previously has been adjudicated a delinquent child for committing a sexually oriented offense. If the adjudicating judge has classified the delinquent child under division (A) of section 2152.83 of the Revised Code based on that adjudication a juvenile sex offender registrant, the judge shall determine, prior to entering the classification order, whether the delinquent child previously has been adjudicated a delinquent child for committing a sexually oriented offense. If the judge determines that the offender previously has not been convicted of or pleaded guilty to a sexually oriented offense or that the delinquent child previously has not been adjudicated a delinquent child for committing a sexually oriented offense, the judge shall specify in the offender's sentence or in the order classifying the delinquent child a juvenile sex offender registrant that the judge has determined that the offender or delinquent child is not a habitual sex offender. If the judge determines that the offender previously has been convicted of or pleaded guilty to a sexually oriented offense or that the delinquent child previously has been adjudicated a delinquent child for committing a sexually oriented offense, the judge shall specify in the offender's sentence and the judgment of conviction that contains the sentence or in the order classifying the delinquent child a juvenile sex offender registrant that the judge has determined that the offender or delinquent child is a habitual sex offender and may impose a requirement in that sentence and judgment of conviction or in that order that the offender or delinquent child be subject to the community notification provisions regarding the offender's or delinquent child's place of residence that are contained in sections 2950.10 and 2950.11 of the Revised Code. Unless the habitual sex offender also has been adjudicated as being a sexual predator relative to the sexually oriented offense in question, the offender or delinquent child shall be subject to those community notification provisions only if the court imposes the requirement described in this division in the offender's sentence and the judgment of conviction or in the order classifying the delinquent child a juvenile sex offender registrant.

(F)(1) An offender or delinquent child classified as a sexual predator may petition the court of common pleas or, for a delinquent child, the juvenile court of the county in which the offender or delinquent child resides or temporarily is domiciled to enter a determination that the offender or delinquent child is not an adjudicated sexual predator in this state for purposes of the sex offender registration requirements of this chapter or the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code if all of the following apply:

(a) The offender or delinquent child was convicted of, pleaded guilty to, or was adjudicated a delinquent child for committing, a sexually oriented offense in another state or in a federal court, a military court, or an Indian tribal court.

(b) As a result of the conviction, plea of guilty, or adjudication described in division (F)(1)(a) of this section, the offender or delinquent child is required under the law of the jurisdiction under which the offender or delinquent child was convicted, pleaded guilty, or was adjudicated to register as a sex offender until the offender's or delinquent child's death and is required to verify the offender's or delinquent child's address on at least a quarterly basis each year.

(c) The offender or delinquent child was automatically classified as a sexual predator under division (A) of this section in relation to the conviction, guilty plea, or adjudication described in division (F)(1)(a) of this section.

(2) The court may enter a determination that the offender or delinquent child filing the petition described in division (F)(1) of this section is not an adjudicated sexual predator in this state for purposes of the sex offender registration requirements of this chapter or the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code only if the offender or delinquent child proves by clear and convincing evidence that the requirement of the other jurisdiction that the offender or delinquent child register as a sex offender until the offender's or delinquent child's death and the requirement that the offender or delinquent child verify the offender's or delinquent child's address on at least a quarterly basis each year is not substantially similar to a classification as a sexual predator for purposes of this chapter.

Sec. 2950.12.  (A) Except as provided in division (B) of this section, any of the following persons shall be immune from liability in a civil action to recover damages for injury, death, or loss to person or property allegedly caused by an act or omission in connection with a power, duty, responsibility, or authorization under this chapter or under rules adopted under authority of this chapter:

(1) An officer or employee of the bureau of criminal identification and investigation;

(2) The attorney general, a chief of police, marshal, or other chief law enforcement officer of a municipal corporation, a sheriff, a constable or chief of police of a township police department or police district police force, and a deputy, officer, or employee of the office of the attorney general, the law enforcement agency served by the marshal or the municipal or township chief, the office of the sheriff, or the constable;

(3) A prosecutor and an officer or employee of the office of a prosecutor;

(4) A supervising officer and an officer or employee of the adult parole authority of the department of rehabilitation and correction;

(5) A supervising officer and an officer or employee of the department of youth services;

(6) A supervisor and a caseworker or employee of a public children services agency acting pursuant to section 5153.16 of the Revised Code;

(7) A managing officer of a state correctional institution and an officer or employee of the department of rehabilitation and correction;

(8) A person identified in division (A)(2), (3), (4), (5), (6), or (7) of section 2950.11 of the Revised Code or the agent of that person.

(B) The immunity described in division (A) of this section does not apply to a person described in divisions (A)(1) to (7) (8) of this section if, in relation to the act or omission in question, any of the following applies:

(1) The act or omission was manifestly outside the scope of the person's employment or official responsibilities.

(2) The act or omission was with malicious purpose, in bad faith, or in a wanton or reckless manner.

(3) Liability for the act or omission is expressly imposed by a section of the Revised Code.

Section 2. That existing sections 2950.09 and 2950.12 of the Revised Code are hereby repealed.

Section 3. This act is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety. The reason for such necessity is that, because sexual predators are subjected to more stringent registration requirements and to community notification requirements that provide for increased public safety, it is crucial for courts to have the mechanism enacted in this act for determining whether a person who is convicted of a sexually oriented offense but acquitted of a sexually violent predator specification included in the charges for that offense is a sexual predator. Therefore, this act shall go into immediate effect.