Youngstown Daily Legal News

Constitutionality questioned of law to add impaired individuals to protected class

KEITH ARNOLD
Special to the Legal News
Published: February 7, 2018

A third hearing of a House bill devised to protect some of society's most vulnerable from opportunistic voyeurs encountered a hiccup during a hearing recently before lawmakers seated for the Senate Judiciary Committee.

Niki Clum, a criminal defense attorney and legislative liaison for the Ohio Public Defender, noted that House Bill 68 which adds impaired individuals - those with mental or physical impairments, including older individuals - to the protected class of individuals in state law's definition of voyeurism victims may, in effect, create a constitutional conflict.

Clum said the concern arises from the bill's failure to not exclude impaired individuals from being charged under HB 68.

"For this reason, the bill will likely be susceptible to an 'as applied' constitutional challenge," she told senators. "When an individual is in the same protected class as the victim, prosecuting that individual may be a due-process and equal-protection violation."

She cited the Supreme Court of Ohio's decision in a juvenile case that determined it was unconstitutional to prosecute a 12-year-old boy for rape of a victim under the age of 13 because it violated his rights to due process and equal protection.

"The court found that (the boy) could not be prosecuted for this offense because he was in the same protected class as the victim, children under 13-years-old," Clum explained. "A similar argument can be made if an impaired person is prosecuted pursuant to HB 68.

"That individual would also be a part of the class of individuals sought to be protected under the bill. Therefore, that individual would also have an argument that their constitutional rights are being violated."

She added this would be especially problematic because all the offenses included in the bill require the individual to be placed on the sexual offender registry as a Tier II offender.

"In a world of cell phones and cameras, it is not hard to image a case where an individual with an intellectual disability creates sexual- or nudity-oriented material depicting a peer," she said.

The bill would expand certain voyeurism offenses that currently apply only when the specified prohibited acts involve a minor. For purposes of the bill's provisions, an impaired person is an individual whose ability 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 other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

HB 68 also provides that the higher range of potential prison terms for a third degree felony applies to third degree felony violations of those offenses involving either a minor or an impaired person, analysis of the bill provided.

Clum proposed a fix for the potential conflict.

"To avoid litigation of this issue, the (bill) should include language that specifies that impaired persons, and minors since they are also a protected class under the bill, are not subject to prosecution under the offenses in the bill," she noted.

Senators also considered proponent testimony from two Cleveland Police detectives assigned to the department's Sex Crimes and Child Abuse Unit.

The detectives shared the details of case in which 12 individuals were victimized by an employee of the health care facility charged with their care.

A search warrant enabled the detectives to recover from the suspect's cell phone several photos of individuals residing in a health care facility in a partial state of nudity.

"The individuals in this case are someone's mothers and fathers, grandmothers and grandfathers," Det. Christina Cottom said. "They were placed by their family members, people like you and I, into this health care facility under the conditions that they would be properly cared for.

"Instead they were victimized and sexually exploited by someone who did not have any interest in their well being."

Nobody would ever want a family member victimized in such a way, Det. Cynthia Adkins added.

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