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Tuesday, February 23, 2010

Ind. Law - "Study committee to address ‘sexting’; "Wallace" language added to bill

The Fort Wayne Journal Gazette reports today:

The issue of young people sending sexually explicit photos of themselves and others via text message or other technology will be referred to a summer study committee. That language was added to Senate Bill 224 in a House committee Monday morning.

Language also was added setting up a process in which sex offenders can file to have their names taken off the sex offender registry under a recent Indiana Supreme Court decision against ex post facto punishment.

That means offenders can’t be punished further by having their name added to the registry if that wasn’t in the law when they committed the offense.

The legislation now heads to the full House for consideration.

Some may consider that the proposed new "Wallace" language would make a bad situation worse. The amendment would be made to IC 11-8-8-22, Currently, that section applies to a sex offender required to register under IC 11-8-8, even though:
(b) * * * due to a change in federal or state law after June 30, 2007, an individual who engaged in the same conduct as the offender:
(1) would not be required to register under this chapter; or
(2) would be required to register under this chapter but under less restrictive conditions than the offender is required to meet.
Subsection (c) of the current law says that such a person may petition the court to remove the person's designation as an offender, and (d)(2) the court may give notice to the prosecutor and set the matter for hearing. The current law continues:
(e) A court may grant a petition under this section if, following a hearing, the court makes the following findings:
(1) The law requiring the petitioner to register as an offender has changed since the date on which the petitioner was initially required to register.
(2) If the petitioner who was required to register as an offender before the change in law engaged in the same conduct after the change in law occurred, the petitioner would:
(A) not be required to register as an offender; or
(B) be required to register as an offender, but under less restrictive conditions.
(3) If the petitioner seeks relief under this section because a change in law makes a previously unavailable defense available to the petitioner, that the petitioner has proved the defense.
The court has the discretion to deny a petition under this section, even if the court makes the findings under this subsection.

(f) The petitioner has the burden of proof in a hearing under this section.

(g) If the court grants a petition under this section, the court shall notify:

(1) the victim of the offense, if applicable;
(2) the department of correction; and
(3) the local law enforcement authority of the county in which the petitioner resides.
The new proposed language in SB 224 begins on p. 3 (SECTION 2) of the bill as it came out of House committee yesterday. Some might say that the only useful language in this proposed change would be the new subsection (j) on p. 5, which would read:
(j) An offender may base a petition filed under this section on a claim that the application or registration requirements constitute ex post facto punishment.
Otherwise, the new language would, in a new subsection (d), limit the court in which the petition could be filed, and in (e) require the judge to give multiple notices, and prohibit the hearing being set until at least 60 days after the various notices have been given. In addition "If the court fails to issue a notice as required by this subsection, an order granting relief to the petitioner may be rescinded." See also subsections (k) and (l) on p. 5.

Furthermore, the new language would not take effect until July 1, 2010. What happens until then? And what of individuals whose names already have been removed pursuant to the Supreme Court's decision in Wallace, either by court order, or by sheriffs' actions? What of pending actions?

Here is a list of ILB "Wallace" entries.

Posted by Marcia Oddi on February 23, 2010 09:09 AM
Posted to Ind. Sup.Ct. Decisions | Indiana Law