CINCINNATI – H.R. 4472, the Adam Walsh Child Protection and Safety Act of 2006, is the gift that just keeps on giving ... to people who aren't too sane about sex.
"In Ohio, starting on January 2, a conviction for pandering obscenity is a registratable offense," stated prominent First Amendment attorney H. Louis Sirkin. "It's a result of the Adam Walsh Act. In Ohio, they've made pandering obscenity a 15-year registratable offense. The law doesn't go into effect until January, but the problem is, it's not one that is subject to a preenforcement attack, I don't think. I mean, how do you get standing? What are you going to say? 'I'm going to pander obscenity?' You have to wait till somebody gets convicted to make an attack on that, but it's really frightening."
The maximum sentence in Ohio for having been convicted of one count of "pandering obscenity" – that is, creating, advertising, selling, renting, delivering or displaying an obscene work within the state – is 12 months in prison. There's just one problem: The Adam Walsh Act has expanded the definition of "sex offense" to mean "a criminal offense that has an element involving a sexual act or sexual contact with another," and a "sex offender" is "an individual who was convicted of a sex offense."
Now, one might think that "a criminal offense that has an element involving a sexual act" would require some personal sexual contact between two or more individuals, and indeed, another part of the law states, "An offense involving consensual sexual conduct is not a sex offense for the purposes of this title if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense."
But censorious officials in Ohio (and likely soon elsewhere) have taken the position that an obscenity bust is a "criminal offense that has an element involving a sexual act," even if that act is only on videotape, DVD or VOD, and the Office of the Ohio Public Defender warns that under the Ohio Revised Code, Chap. 2907.32, "pandering obscenity" will become a "Tier 1" offense requiring registration under Ohio's Sex Offender and Registration Notification (SORN) Act, Ohio Revised Code, Chap. 2950.
As a Tier 1 sexual offender, the Ohio Public Defender's Office states that "registration duties last 15 years for adults, 10 years for juveniles," and "in-person verification at the county sheriff's office is required annually," although according to Sirkin, a Tier 1 offender can petition to be removed from the list after 10 years. Other Tier 1 offenses requiring registration include soliciting a child to have sex, or actually having sex with one; voyeurism; date rape, or having sex with someone who is incapable of giving consent; softcore child porn; enticing or stalking a child with the intention of having sex with it; or attempting, abetting or conspiring to do any of those things.
"Classification is based solely on the offense of conviction; a person's likelihood to reoffend will no longer be considered," the Public Defender warns. It also implies – and the new law so indicates – that such reclassification will be retroactive for anyone convicted of a covered offense, whether they have completed their registration compliance already or not. [See Sec. 2950.041(A)(4)]
Moreover, while there were some sexually-oriented offenses under Ohio law that did not require registration under SORN, most of those no longer exist: Ohio's Senate Bill 10, which revamps Chap. 2750, has apparently eliminated most references to "registration exempt sexually oriented offense."
"What's funny is, now soliciting prostitution or prostitution in Ohio is not a registratable offense," Sirkin noted, "but if you pander obscenity, it's a Tier 1, 15-year registratable offense."
The irony (and injudiciousness) of being forced to spend 15 years on the Sex Offender Registry for having committed an offense that can garner an adult retailer less than one year in jail is not lost on Sirkin.
"I've been thinking about filing a motion for declaratory judgment," Sirkin admitted. "The new law could be facially overbroad because it certainly creates a chilling effect, and it would be overbroad in the same way as the Free Speech Coalition case dealing with the [Child Pornography Prevention Act's criminalization of] "appears to be," so I think this in some ways is comparable to that. I feel incumbent to make the owners of adult businesses that I represent be aware of it, and also, they need to explain it to all their employees, who are really the ones who'll be on the front line about this."
Aside from the reporting requirements, one of the biggest problems with being compelled to register as a sex offender is residency.
"Sec. 2950.034. (A) No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises or preschool or child day-care center premises," the new law reads.
Why someone convicted of selling a non-child-porn obscene DVD should be forced to live at least 1,000 feet from where children go to school or day-care is unclear, and the law itself provides no rationale for it. Moreover, wherever the registrant decides to live will go into an official database ... along with information about their DNA, fingerprints, criminal history, Social Security number, driver's license, vehicle ownership, school attendance, email addresses, business and occupational licenses, a description of their offense and a photograph and physical description of the registrant. All of this may be accessible to others via the local sheriff's website, and the sheriff is required to send notice of a registrant's address to all apartment house managers and condo owners association within 1,000 feet of that address, to any school principal, day-care center administrator and youth organization leader within the county, and to any resident who shares a common hallway with the registrant.
"Some states require that [sex offenders] live so many feet from schools, parks, etc.," noted attorney Clyde DeWitt, "and that's a big issue. If you do a Google search about this, you'll find there's some states where there has been litigation about this, where they've said you need to be 500 feet from this and this, kind of like adult businesses, and the sex offender says, 'Well, wait a minute; I can't live anywhere except on the top of a mountain somewhere.'"
"Registration is bigger than the scarlet A," Sirkin asserted. "I just think it's cruel and unusual punishment, but more than that, I think it creates a prior restraint and a chilling effect, and I think people, when they find out what the potential of that is – I mean, the fear of even the conviction of going to jail is enough to cause some people some problems, but now to add onto that the potential of registration, I just think is unbelievable."
At this time, Ohio is the only state that AVN has been able to determine has enacted such a law, but all states must do so by July 27, 2009 or risk losing 10% of their federal law enforcement grant funds.
"I think it's a serious concern and we need to get proactive about it," Sirkin warned.
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