Am.
Sub. H.B. 95
126th General Assembly
(As Passed by the General Assembly)
Reps. Seitz, McGregor, C. Evans, Allen, Widener, Wolpert, Combs, Latta, T. Patton, Schaffer, Raussen, Wagoner, Faber, Webster, Hoops, Taylor, Gilb, Raga, Brinkman, Hagan, Reidelbach, White, Willamowski, Harwood, Uecker, G. Smith, Gibbs, Schneider, Hartnett, Carmichael, Buehrer, Seaver, Hughes, Collier, Trakas, Flowers, Oelslager, D. Evans, Aslanides, Blessing, Bubp, Calvert, Daniels, Dolan, Domenick, Law, Martin, Reinhard, Setzer, Widowfield
Sens. Dann, Cates, Clancy, Gardner, Goodman, Hagan, Hottinger, Mumper, Niehaus, Padgett, Spada, Stivers, Zurz, Wachtmann, Jordan, Jacobson, Armbruster, Fedor, Schuler, Grendell, Roberts, Harris, Austria
Effective date: August 3, 2006
ACT SUMMARY
· Revises the Felony Sentencing Law's definition of "repeat violent offender."
· Modifies the sentencing provisions for a repeat violent offender so that a court may impose on an offender, in addition to the longest prison term authorized or required for the offense, an additional definite prison term of 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10 years if: (1) the offender is convicted of or pleads guilty to a repeat violent offender specification, (2) the offense of which the offender currently is convicted or to which the offender currently pleads guilty is aggravated murder and the court does not impose a sentence of death or life imprisonment without parole, murder, terrorism and the court does not impose a sentence of life imprisonment without parole, any felony of the first degree that is an offense of violence and the court does not impose a sentence of life imprisonment without parole, or any felony of the second degree that is an offense of violence and the trier of fact finds that the offense involved an attempt to cause or a threat to cause serious physical harm to a person or resulted in serious physical harm to a person, (3) the court imposes the longest prison term for the offense that is not life imprisonment without parole, and (4) the court finds that certain recidivism and seriousness of the offense elements are present.
· Also modifies the sentencing provisions for a repeat violent offender so that a court must impose on an offender the longest prison term authorized or required for the offense and must impose an additional 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10 year sentence if: (1) the offender is convicted of or pleads guilty to a repeat violent offender specification, (2) the offender within the preceding 20 years has been convicted of or pleaded guilty to three or more repeat violent offender offenses, and (3) the offense or offenses of which the offender currently is convicted or to which the offender currently pleads guilty is aggravated murder and the court does not impose a sentence of death or life imprisonment without parole, murder, terrorism and the court does not impose a sentence of life imprisonment without parole, any felony of the first degree that is an offense of violence and the court does not impose a sentence of life imprisonment without parole, or any felony of the second degree that is an offense of violence and the trier of fact finds that the offense involved an attempt to cause or a threat to cause serious physical harm to a person or resulted in serious physical harm to a person.
· Requires the court to state its findings explaining a repeat violent offender sentence.
· Permits a defendant to seek leave to appeal an additional repeat violent offender sentence but only if the sentence is for a definite prison term that is longer than five years.
· Specifies that a sentence imposed on a third-time repeat violent offender is not subject to review except as described in the preceding dot point and that a defendant (1) otherwise retains all existing rights to appeal and (2) may appeal the manner in which the court considers whether two or more offenses committed at the same time or as part of the same act are to be considered one offense.
· Modifies a provision that requires a mandatory prison term for certain felony offenses of the third degree listed in former law's definition of a "repeat violent offender" (that are removed by the act) to reflect those third degree felonies for which former law required a mandatory sentence.
· Makes sexual battery a felony of the second degree when it is committed on or after the act's effective date and the victim of the offense is under 13 years of age and requires a court sentencing an offender who commits the offense against a victim under 13 years of age to impose upon the offender a mandatory prison term from the range of prison terms specified in the Felony Sentencing Law for felonies of the second degree.
· Modifies the punishment for gross sexual imposition when it is committed on or after the act's effective date and the other person, or one of the other persons, involved in the offense is less than 13 years of age, as follows: (1) except as described in clause (2) of this paragraph, there is a presumption that a prison term must be imposed for the offense, and (2) the sentencing court is required to impose on an offender a mandatory prison term equal to one of the prison terms prescribed in the Felony Sentencing Law for a felony of the third degree if either of the following applies: (a) evidence was admitted in the case corroborating the violation, other than the testimony of the victim, or (b) the offender previously was convicted of or pleaded guilty to gross sexual imposition, rape, the former offense of felonious sexual penetration, or sexual battery, and the victim of the previous offense was under 13 years of age.
· Modifies the Sex Offense Law definition of "sexual conduct" to mean vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another.
· Authorizes a person who was the victim of a sexually oriented offense to file a motion requesting a temporary protection order or file an action for a civil protection order for protection from the person who committed the sexually oriented offense.
· Provides that, if a person is convicted of a sexually oriented offense and is determined to be a sexual predator for that offense and the person does not serve a prison term or jail term, the court may require that the offender be monitored by means of a global positioning device.
· Requires a court or child welfare agency that places a delinquent child in an institution or association, as defined by the Public Welfare Law and certified by the Department of Job and Family Services, which child has been adjudicated delinquent for committing an act that is a sexually oriented offense in a prior delinquency adjudication or in the current delinquency adjudication, to notify the operator of the institution or association and the sheriff of the county in which the institution or association is located of this adjudication.
TABLE OF CONTENTS
Definition of "repeat violent offender"
Notice of an intent to use a prior conviction as proof that a defendant
is a
repeat violent offender
Sentencing a repeat violent offender
Mandatory prison term for certain felony offenses of the third degree
Gross sexual imposition penalties
Sex Offense Law definition of sexual conduct
Temporary protection orders and civil protection orders and consent
agreements
Global positioning devices, for sexual predators
Notice of placement of child adjudicated delinquent for a sexually
oriented
offense
CONTENT AND OPERATION
Ongoing law provides a special sentencing mechanism that applies to a person who is convicted of or pleads guilty to a specified felony and who also is convicted of or pleads guilty to a specification that the person is a "repeat violent offender," as defined by law. The act modifies the definition of "repeat violent offender," modifies the repeat violent offender sentencing mechanism, and makes conforming changes in other provisions of law.
Under former law, as used in the Felony Sentencing Law "repeat violent offender" meant a person about whom both of the following applied (R.C. 2929.01(DD)):
(1) The person had been convicted of or had pleaded guilty to, and was being sentenced for committing, for complicity in committing, or for an attempt to commit, aggravated murder, murder, involuntary manslaughter, a felony of the first degree other than one set forth in the Drug Offenses Laws, a felony of the first degree set forth in the Drug Offenses Laws that involved an attempt to cause serious physical harm to a person[1] or that resulted in serious physical harm to a person, or a felony of the second degree that involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to a person.
(2) Either of the following applied:
(a) The person previously was convicted of or pleaded guilty to, and previously served or, at the time of the offense was serving, a prison term for, any of the following: (i) aggravated murder, murder, involuntary manslaughter, rape, the former offense of felonious sexual penetration, a felony of the first or second degree that resulted in the death of a person or in physical harm to a person,[2] or complicity in or an attempt to commit any of those offenses, or (ii) an offense under an existing or former law of Ohio, another state, or the United States that is or was substantially equivalent to an offense listed under clause (2)(a)(i) and that resulted in the death of a person or in physical harm to a person.
(b) The person previously was adjudicated a delinquent child for committing an act that if committed by an adult would have been an offense listed in the preceding paragraph, the person was committed to the Department of Youth Services for that delinquent act.
The act revises the definition of "repeat violent offender" to mean a person about whom both of the following apply (R.C. 2929.01(DD)):
(1) The person is being sentenced for committing or for complicity in committing any of the following: (a) aggravated murder, murder, any felony of the first or second degree that is an offense of violence,[3] or an attempt to commit any of these offenses if the attempt is a felony of the first or second degree, or (b) an offense under an existing or former law of Ohio, another state, or the United States that is or was substantially equivalent to an offense described under clause (1)(a).
(2) The person previously was convicted of or pleaded guilty to an offense described under (1) above.
As the act changes the definition of "repeat violent offender" to remove a prior juvenile adjudication for an act that would be an offense listed in the prior definition of "repeat violent offender," the act also removes a provision in former Delinquency Law regarding certain juvenile adjudications counting as convictions for purposes of a future repeat violent offender determination under the Felony Sentencing Law. This provision of former law that is removed by the act specified that, if a child was adjudicated a delinquent child for committing an act that if committed by an adult would be aggravated murder, murder, rape, the former offense of felonious sexual penetration, involuntary manslaughter, a felony of the first or second degree resulting in the death of or physical harm to a person, complicity in or an attempt to commit any of those offenses, or an offense under an existing or former law of Ohio that is or was substantially equivalent to any of those offenses and if the court in its order of disposition for that act committed the child to the custody of the Department of Youth Services, the adjudication had to be considered a conviction for purposes of a future repeat violent offender determination. The act also modifies a similar provision in the Criminal Law that pertains to the consideration of a delinquent child adjudication as a conviction for specified Criminal Law purposes to specify that the provision does not apply for purposes of repeat violent offender determinations. (R.C. 2152.17(G) and 2901.08.)
The act adds to the Revised Code section that governs repeat violent offender specifications a provision that specifies that, at the arraignment of the defendant alleged to be a repeat violent offender or as soon thereafter as is practicable, the prosecuting attorney may give notice to the defendant of the prosecuting attorney's intention to use a certified copy of the entry of judgment of a prior conviction as proof of that prior conviction. The defendant must then give notice to the prosecuting attorney of the defendant's intention to object to the use of the entry of judgment. If the defendant pursuant to Criminal Rule 12 does not give notice of that intention to the prosecuting attorney before trial, the defendant waives the objection to the use of an entry of judgment as proof of the defendant's prior conviction, as shown on the entry of judgment. (R.C. 2941.149(C).)
Sentencing generally. The ongoing Felony Sentencing Law sets forth the purposes and principals of sentencing for courts to follow in sentencing felony offenders and specifies factors to consider when deciding whether to impose a prison term and when determining the length of prison term to impose. For certain offenses and certain situations, the Felony Sentencing Law requires a prison term to be imposed. But, generally: for felonies of the first and second degree and certain drug offenses, the Law presumes that a prison term is the appropriate sentence; for felonies of the third degree, except for certain drug offenses, the Law expresses no preference for or against a prison term; and for felonies of the fourth and fifth degree, except for certain drug offenses, the Law expresses a preference against a prison term being the appropriate sentence. R.C. 2929.14 sets forth ranges of prison terms that are authorized for the five different degrees of felonies. (R.C. 2929.11 and 2929.12, not in the act, and R.C. 2929.13 and 2929.14.)
Mandatory prison terms--generally. Notwithstanding the general sentencing provisions, the court is required to impose a prison term or terms for certain felony offenses and generally is prohibited from reducing the term or terms so imposed. Under former law, these offenses for which mandatory prison terms had to be imposed included, but were not limited to, the following offenses (R.C. 2929.13(F)):
(1) Aggravated murder when death is not imposed or murder;
(2) Any rape, regardless of whether force was involved and regardless of the age of the victim, or an attempt to commit rape if, had the offender completed the rape that was attempted, the offender would have been subject to a sentence of life imprisonment or life imprisonment without parole for the rape;
(3) Gross sexual imposition or sexual battery, if the victim is under 13 years of age, if the offender previously was convicted of or pleaded guilty to rape, the former offense of felonious sexual penetration, gross sexual imposition, or sexual battery, and if the victim of the previous offense was under 13 years of age;
(4) A felony offense of involuntary manslaughter, aggravated vehicular homicide, vehicular homicide, vehicular manslaughter, aggravated vehicular assault, vehicular assault, felonious assault, aggravated assault, or assault if the penalty provided for the offense requires the imposition of a prison term;
(5) A first, second, or third degree felony drug offense for which R.C. 2925.02, 2925.03, 2925.04, 2925.05, 2925.06, 2925.11, 2925.13, 2925.22, 2925.23, 2925.36, 2925.37, 3719.99, or 4729.99, whichever is applicable regarding the violation, requires the imposition of a mandatory prison term;
(6) Any offense that is a first or second degree felony and that is not set forth above in paragraph (1), (2), (3), or (4), if the offender previously was convicted of or pleaded guilty to aggravated murder, murder, any first or second degree felony, or an offense under an existing or former law of Ohio, another state, or the United States that is or was substantially equivalent to one of those offenses;
(7) Any offense that is a third degree felony and that is listed in paragraph (1) of the former definition of "repeat violent offender" if the offender previously was convicted of or pleaded guilty to any offense that is listed in paragraph (2)(a) of that definition (see "Former law" under "Definition of "repeat violent offender"," above).
(8) Certain felonies committed while armed with a firearm, offenses of violence committed while wearing body armor, certain corrupt activity offenses, sexually violent offenses involving a sexually violent predator specification, certain offenses involving conveying deadly weapons, dangerous ordnance, or drugs of abuse into detention facilities or mental health or mental retardation or developmentally disabled facilities, and aggravated vehicular homicide if the victim is a peace officer or the offender has three or more violations of R.C. 4511.19(A) or (B) or of an equivalent offense.
Repeat violent offender sentencing. Under former law, if an offender who was convicted of or pleaded guilty to a felony also was convicted of or pleaded guilty to a specification that the offender is a repeat violent offender (the specification is set forth in R.C. 2941.149), the court was required to impose a prison term from the range of terms authorized for the offense under R.C. 2929.14(A) that could be the longest term in the range and that could not be reduced. But, if the court found that the repeat violent offender, in committing the offense, caused any physical harm that carried a substantial risk of death to a person or that involved substantial permanent incapacity or substantial permanent disfigurement of a person, the court was required to impose the longest prison term from the range of terms authorized for the offense under R.C. 2929.14(A). (R.C. 2929.14(D)(2)(a).)
If the court imposed the longest prison term from the range of terms authorized under R.C. 2929.14(A) for the offense, the court could impose on the offender an additional definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten years if the court found that both of the following applied with respect to the prison terms imposed on the offender pursuant to the preceding paragraph and, if applicable, certain other mandatory prison term provisions (R.C. 2929.14(D)(2)(b)):
(1) The terms so imposed were inadequate to punish the offender and protect the public from future crime, because the applicable specified factors indicating a greater likelihood of recidivism outweighed the applicable specified factors indicating a lesser likelihood of recidivism.
(2) The terms so imposed were demeaning to the seriousness of the offense, because one or more of the specified factors indicating that the offender's conduct is more serious than conduct normally constituting the offense were present, and they outweighed the applicable specified factors indicating that the offender's conduct is less serious than conduct normally constituting the offense.
Sentencing of a repeat violent offender. The act revises the law regarding the sentencing of repeat violent offenders. It specifies that, subject to the third-time repeat violent offender sentencing provisions described below, a court may impose on an offender, in addition to the longest prison term authorized or required for the offense, an additional definite prison term of 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10 years if all of the following criteria are met (R.C. 2929.14(D)(2)(a)):
(1) The offender is convicted of or pleads guilty to a repeat violent offender specification.
(2) The offense of which the offender currently is convicted or to which the offender currently pleads guilty is aggravated murder and the court does not impose a sentence of death or life imprisonment without parole; murder; terrorism and the court does not impose a sentence of life imprisonment without parole; any felony of the first degree that is an offense of violence and the court does not impose a sentence of life imprisonment without parole; or any felony of the second degree that is an offense of violence and the trier of fact finds the offense involved an attempt to cause or a threat to cause serious physical harm to a person or resulted in serious physical harm to a person.
(3) The court imposes the longest prison term for the offense that is not life imprisonment without parole.
(4) The court finds that the prison terms imposed pursuant to (3), above, and, if applicable, pursuant to R.C. 2929.14(D)(1) or (3) are inadequate to punish the offender and protect the public from future crime, because specified factors under R.C. 2929.12 indicating a greater likelihood of recidivism outweigh specified factors under that section indicating a lesser likelihood of recidivism.
(5) The court finds that the prison terms imposed pursuant to (3), above, and, if applicable, pursuant to R.C. 2929.14(D)(1) or (3) are demeaning to the seriousness of the offense, because one or more specified factors indicating that the offender's conduct is more serious than conduct normally constituting the offense are present, and they outweigh specified factors indicating that the offender's conduct is less serious than conduct normally constituting the offense.
Sentencing of a third-time repeat violent offender. The act requires a court to impose on an offender the longest prison term authorized or required for the offense and to impose an additional prison term of 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10 years if all of the following criteria are met (R.C. 2929.14(D)(2)(b)):
(1) The offender is convicted of or pleads guilty to a repeat violent offender specification.
(2) The offender within the preceding 20 years has been convicted of or pleaded guilty to three or more offenses described in the definition of a repeat violent offender, as modified by the act, including all offenses described in that definition of which the offender is convicted or to which the offender pleads guilty in the current prosecution and all offenses described in that definition of which the offender previously has been convicted or to which the offender previously pleaded guilty, whether prosecuted together or separately.
(3) The offense or offenses of which the offender currently is convicted or to which the offender currently pleads guilty is aggravated murder and the court does not impose a sentence of death or life imprisonment without parole; murder; terrorism and the court does not impose a sentence of life imprisonment without parole; any felony of the first degree that is an offense of violence and the court does not impose a sentence of life imprisonment without parole; or any felony of the second degree that is an offense of violence and the trier of fact finds the offense involved an attempt to cause or a threat to cause serious physical harm to a person or resulted in serious physical harm to a person.
The act specifies that, for purposes of sentencing a repeat violent offender with three or more qualifying convictions or guilty pleas under the above-described provision, two or more offenses committed at the same time or as part of the same act or event must be considered one offense, and that one offense must be the offense with the greatest penalty (R.C. 2929.14(D)(2)(c)).
Service of sentence; court explanation of sentence. For both repeat violent offenders and third-time repeat violent offenders sentenced under the above-described provisions, ongoing law provides that a repeat violent offender sentence may not be reduced. However, the act specifies that the offender must serve any additional prison term under the repeat violent offender sentence consecutively to and prior to the prison term imposed for the underlying offense. (R.C. 2929.14(D)(2)(d).)
The act also requires a court to state its findings explaining the sentence imposed on a repeat violent offender or a third-time repeat violent offender under the above-described provisions (R.C. 2929.14(D)(2)(e)).
Appeal options for a repeat violent offender. Ongoing law specifies that a defendant may appeal as a matter of right a sentence that consists of an additional prison term of ten years imposed because the defendant is a repeat violent offender, but under the act, the provision does not apply to a defendant who is a third-time repeat violent offender (RC. 2953.08(A)(5)). The act permits a defendant to seek leave to appeal an additional sentence imposed because the offender is a repeat violent offender or a third-time repeat violent offender, but only if the additional sentence is for a prison term that is longer than five years (R.C. 2953.08(C)(2)). If an appeal is granted under either provision, the act directs the appellate court to review the statement of findings that the trial court issued explaining the repeat violent offender sentence and to remand the case to the sentencing court if it failed to state the required findings (R.C. 2953.08(G)).
For a third-time repeat violent offender, the act provides that, except as described in the preceding paragraph, a sentence imposed upon that defendant is not subject to review. However, except as otherwise described in this paragraph, a defendant retains all rights to appeal under R.C. Chapter 2953. or any other provision of the Revised Code. Also, a defendant has the right to appeal under R.C. Chapter 2953. or any other provision of the Revised Code the court's application of R.C. 2929.14(D)(2)(c), discussed above in "Sentencing of a third-time repeat violent offender" (R.C. 2953.08(D)(2)).
As described above in paragraph (7) of "Mandatory prison terms--generally," former law specified that a mandatory prison term was required for any offense that is a third degree felony and that was listed in former law's definition of a "repeat violent offender" if the offender previously was convicted of or pleaded guilty to any offense listed in former law's definition of a repeat violent offender (R.C. 2929.13(F)(7)).
Because the act removes some third degree felonies from the definition of a "repeat violent offender," the act amends R.C. 2929.13(F)(7) to reflect the third degree felonies that require mandatory sentences under the revised R.C. 2929.13(F)(7). The act generally requires a court to impose a prison term and not reduce that prison term for an offense that is a third degree felony and either is the offense of involuntary manslaughter or an attempt to commit a felony of the second degree that is an offense of violence and involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to a person if the offender previously was convicted of or pleaded guilty to any of the following offenses:
(1) Aggravated murder, murder, involuntary manslaughter, rape, the former offense of felonious sexual penetration, a felony of the first or second degree that resulted in the death of a person or in physical harm to a person, or complicity in or an attempt to commit any of those offenses;
(2) An offense under an existing or former law of Ohio, another state, or the United States that is or was substantially similar to an offense listed in (1) above that resulted in the death of a person or in physical harm to a person.
Ongoing law prohibits a person from engaging in sexual conduct with another, not the spouse of the offender, when any of the following apply: (1) the offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution, (2) the offender knows that the other person's ability to appraise the nature of or control the other person's own conduct is substantially impaired, (3) the offender knows that the other person submits because the other person is unaware that the act is being committed, (4) the offender knows that the other person submits because the other person mistakenly identifies the offender as the other person's spouse, (5) the offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person, (6) the other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person, (7) the offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the State Board of Education prescribes minimum standards pursuant to R.C. 3301.07(D), the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school, (8) the other person is a minor, the offender is a teacher, administrator, coach, or other person in authority employed by or serving in an institution of higher education, and the other person is enrolled in or attends that institution, (9) the other person is a minor, and the offender is the other person's athletic or other type of coach, is the other person's instructor, is the leader of a scouting troop of which the other person is a member, or is a person with temporary or occasional disciplinary control over the other person, (10) the offender is a mental health professional, the other person is a mental health client or patient of the offender, and the offender induces the other person to submit by falsely representing to the other person that the sexual conduct is necessary for mental health treatment purposes, or (11) the other person is confined in a detention facility, and the offender is an employee of that detention facility.
A violation of this prohibition is the offense of "sexual battery." Under the former law, a violation of this prohibition was always a felony of the third degree. (R.C. 2907.03.)
The act increases the penalty for the offense of sexual battery committed on or after the act's effective date in circumstances in which the victim of the offense is under 13 years of age, to make it a felony of the second degree in those circumstances. The act also requires a court sentencing an offender who commits the offense against a victim under 13 years of age to impose upon the offender a mandatory prison term from the range of prison terms specified in the Felony Sentencing Law for felonies of the second degree (the range of prison terms specified for felonies of the second degree is a definite prison term of 2, 3, 4, 5, 6, 7, or 8 years; thus, the mandatory prison term must be a definite term of at least two years). (R.C. 2907.03 and 2929.13(F).)
Ongoing law prohibits a person from having sexual conduct with another, not the spouse of the offender, causing another, not the spouse of the offender, to have sexual contact with the offender, or causing two or more other persons to have sexual contact when any of the following applies: (1) the offender purposely compels the other person, or one of the other persons, to submit by force or threat of force, (2) for the purpose of preventing resistance, the offender substantially impairs the judgment or control of the other person or of one of the other persons by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception, (3) the offender knows that the judgment or control of the other person or of one of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person's consent for the purpose of any kind of medical or dental examination, treatment, or surgery, (4) the other person, or one of the other persons, is less than 13 years of age, whether or not the offender knows the age of that person, or (5) the ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age. The section includes special evidentiary and procedural rules that apply regarding violations of the prohibition and judicial proceedings regarding the violations.
A violation of the prohibition is the offense of "gross sexual imposition." Generally, a violation of the portion of the prohibition described in clause (1), (2), (3), or (5) of the preceding paragraph is a felony of the fourth degree. If the offender under the portion of the prohibition described in clause (2) of the preceding paragraph substantially impairs the judgment or control of the other person or one of the other persons by administering any controlled substance to the person surreptitiously or by force, threat of force, or deception, a violation of that portion of the prohibition is a felony of the third degree. A violation of the portion of the prohibition described in clause (4) of the preceding paragraph (i.e., where the other person, or one of the other persons, is less than 13 years of age) is a felony of the third degree. (R.C. 2907.05.)
The act modifies the punishment for the offense of gross sexual imposition committed on or after the act's effective date in circumstances in which the other person, or one of the other persons, involved in the offense is less than 13 years of age. The act retains the classification of the offense as a felony of the third degree, but it provides that: (1) except as otherwise described below, for gross sexual imposition committed in those circumstances, there is a presumption that a prison term must be imposed for the offense, and (2) the court is required to impose on an offender convicted of gross sexual imposition committed in those circumstances a mandatory prison term equal to one of the prison terms prescribed in the Felony Sentencing Law for a felony of the third degree if either of the following applies: (a) evidence was admitted in the case corroborating the violation, other than the testimony of the victim, or (b) the offender previously was convicted of or pleaded guilty to a gross sexual imposition, rape, the former offense of felonious sexual penetration, or sexual battery, and the victim of the previous offense was under 13 years of age. The range of prison terms specified for felonies of the third degree is a definite prison term of 1, 2, 3, 4, or 5 years; thus, the mandatory prison term must be a definite term of at least one year. (R.C. 2907.05, 2929.13, and 2929.14.)
Former law specified that, for purposes of R.C. Chapter 2907. (the Sex Offense Law), "sexual conduct" meant vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, was sufficient to complete vaginal or anal intercourse. (R.C. 2907.01(A).)
The act replaces the term "cavity" in the definition of sexual conduct with the term "opening." Thus, under the act, for purposes of R.C. Chapter 2907. (the Sex Offense Law), "sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, remains sufficient to complete vaginal or anal intercourse. (R.C. 2907.01(A).)
The act expands ongoing law governing the issuance of temporary protection orders for persons who file criminal charges alleging that they were the victim of an offense of violence, another specified offense, or a similar municipal ordinance violations committed against a family or household member so that it also applies to persons who file criminal charges alleging that they were the victim of a "sexually oriented offense," and also modifies the law governing the issuance of civil protection orders for persons who were the victim of domestic violence committed by a family or household member so that it also applies to persons who were the victim of a "sexually oriented offense." All of the former procedures and criteria regarding the issuance of the temporary protection orders and regarding the issuance of the civil protection orders (and related consent agreements) are unchanged by the act and apply under the act to persons who were victims of a sexually oriented offense and who file a motion requesting the issuance of a temporary protection order or an action requesting a civil protection order. The act adds language as necessary to those procedures and criteria so that they also fit the context in which they will be issued, to protect victims of sexually oriented offenses. The act incorporates by reference the existing Sex Offender Registration and Notification Law definition of "sexually oriented offense." (R.C. 2919.26 and 3113.31.)
The act enacts a provision that specifies that, if a person is convicted of or pleads guilty to a "sexually oriented offense" and is determined to be a sexual predator for the offense, at the time of sentencing, if the offender does not serve a prison term or jail term, the court may require that the offender be monitored by means of a global positioning device. If the court requires such monitoring, the cost of monitoring must be borne by the offender, except that, if the offender is indigent, the cost of compliance must be paid by the Crime Victims Reparations Fund (the Reparations Fund is established by existing R.C. 2743.191--not in the act). (R.C. 2929.13(L).)
The Sex Offender Registration and Notification Law definition of "sexually oriented offense" remains applicable to this provision under R.C. 2929.01.
The act requires a court or child welfare agency that places a delinquent child in an institution or association, as defined by Chapter 5103. of the Public Welfare Law and certified by the Department of Job and Family Services, which child has been adjudicated a delinquent child for committing an act that is a sexually oriented offense in a prior delinquent child adjudication or in the current delinquent child adjudication, to notify the operator of the institution or association and the sheriff of the county in which the institution or association is located that the child has been adjudicated a delinquent child for committing an act that is a sexually oriented offense. An association or institution, as defined, includes any incorporated or unincorporated organization, society, association, or agency, public or private, that receives or cares for children for two or more consecutive weeks; any individual, including the operator of a foster home, who for hire, gain, or reward, receives or cares for children for two or more consecutive weeks, unless the individual is related to them by blood or marriage; and any individual not in the regular employ of the court or of an institution or association certified by the Department of Job and Family Services who in any manner becomes a party to the placing of children in foster homes, unless the individual is related to the children by blood or marriage or is an appointed guardian to the children.
HISTORY
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ACTION |
DATE |
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Introduced |
03-01-05 |
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Reported, H. Criminal Justice |
05-26-05 |
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Passed House (75-20) |
10-05-05 |
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Reported, S. Judiciary on Criminal Justice |
03-28-06 |
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Passed Senate (33-0) |
03-28-06 |
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House concurred in Senate amendments (95-1) |
03-29-06 |
06-hb95-126.doc/kl
[1] "Serious physical harm to persons" means any of the following (R.C. 2901.01(A)(5), not in the act): (1) any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment, (2) any physical harm that carries a substantial risk of death, (3) any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity, (4) any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfiguration, or (5) any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
[2] "Physical harm to persons" means any injury, illness, or other physiological impairment, regardless of its gravity or duration (R.C. 2901.01(A)(3), not in the act).
[3] "Offense of violence," as defined in continuing law unaffected by the act, means any of the following offenses (R.C. 2901.01(A)(9)): (1) aggravated murder, murder, voluntary manslaughter, involuntary manslaughter, felonious assault, aggravated assault, assault, permitting child abuse, aggravated menacing, menacing by stalking, menacing, kidnapping, abduction, extortion, rape, sexual battery, gross sexual imposition, aggravated arson, arson, terrorism, aggravated robbery, robbery, aggravated burglary, burglary under certain circumstances, inciting to violence, aggravated riot, riot, inducing panic, domestic violence, intimidation, intimidation of crime victim or witness, escape, and improperly discharging a firearm at or into a habitation, a school safety zone, or with the intent to cause harm or panic to persons in a school, in a school building, or at a school function or the evacuation of a school function, endangering children under certain circumstances, and the former offense of felonious sexual penetration, (2) a violation of an existing or former municipal ordinance or law of Ohio, any other state, or the United States, substantially equivalent to any offense listed in paragraph (1), (3) an offense, other than a traffic offense, under an existing or former municipal ordinance or law of Ohio, any other state, or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons, or (4) a conspiracy or attempt to commit, or complicity in committing, any offense described in paragraph (1), (2), or (3).