STEUBENVILLE - An attorney representing Ma'Lik Richmond in his rape case in juvenile court is arguing a sex offender classification is unconstitutional because it subjects Richmond to double jeopardy.
Richmond, 16, of Steubenville in March was found delinquent of a charge of rape in connection with an incident involving an underage girl that happened last August.
Retired Juvenile Judge Tom Lipps sentenced Richmond and Trent Mays, 17, of Bloomingdale to a minimum of one year in a Department of Youth Services facility. Mays also was sentenced to another minimum of one year after he was found delinquent of illegal use of a minor in nudity-oriented material for having a picture of the 16-year-old victim in an outgoing text message on his cell phone.
Lipps ruled that Mays could be sent to the Paint Creek Lighthouse Youth Center, a privately run facility for juvenile sex offenders. Lipps said the facility has a "superior" program for youth sex offenders.
The hearing for Richmond was continued in June after his attorney, Walter Madison, filed that motion challenging the constitutionality of the juvenile sex offender reporting requirement.
Lipps since has ruled that motions and the transcript of the trial for Richmond and Mays can be publicly released. The Cleveland Plain Dealer filed a motion to have the court file and transcript released. Certain private information about parties in the case have been redacted.
The transcript is being prepared but it is not known when it will be completed.
Persons wishing to view the court file in the case are asked to contact juvenile court to schedule an appointment.
Madison also has filed a motion to close Richmond's sex offender classification hearing, scheduled for 10:30 a.m. on Aug. 16. Madison has twice been denied motions to close hearings and the trial for Richmond.
"(Richmond) has begun his healing and rehabilitation. He should be free to do so without public scrutiny and ridicule. The continued openness of proceedings at this point can only be considered punitive, cruel and unusual," Madison said.
Madison and Brooke Burns, assistant state public defender, filed the motions.
Madison has asked Lipps to decline to issue a sex offender classification for Mays. He said juvenile law requires the classification be issued when a first-time offender ages 16 or 17 is released from a state facility.
Mays had a sex offender classification hearing because it was needed to gain entry to the Paint Creek Lighthouse Youth Center. Lipps said he would review the classification once Mays is released from the facility.
Lipps ruled that Mays is a Tier II sex offender, requiring him to report his address to the sheriff of the county where he lives every 180 days for 20 years.
Madison argued that classification can't occur now because it could be considered a violation of the double jeopardy ruling.
Madison claims the juvenile sex offender law is unconstitutional because it violates equal protection of classes. He said there are different requirements for juvenile judges based on the age of the offender. He said judges have the discretion of issuing a sex offender reporting requirement for juveniles at ages 14-15 but it is mandatory for juveniles ages 16-17.
Madison claims there is no empirical data to suggest juvenile sex offenders are on the path to becoming adult sex offenders.
He cited an Ohio Association of County Behavioral Health Authorities report that stated recidivism rates for juveniles who commit a sexual offense and who receive treatment, supervision and support are lower than any other group of offenders.
Madison also is arguing the legality of juvenile court retaining jurisdiction past an offender's 21st birthday.
Madison said many states couldn't fully implement the federal Adam Walsh Act for sex offender reporting requirements because of the difficulty in handling juvenile offenders.
"Research suggests that public notification for children is damaging and contrary to the rehabilitative purpose of the juvenile justice system. Children who are subject to public registration are less likely to be rehabilitated because they are less likely to reintegrate successfully into society and more likely to have difficulties developing a normal and interpersonal skills, thereby making it more likely that they will reoffend," Madison said in his motion.
Madison, quoting a mental health study, said, "Few labels are as damaging in today's society as 'convicted sex offender.' Sex offenders are, as one scholar put it, 'the lepers of the criminal justice system' with juveniles listed in the sex offender registry sharing this characterization."
Prosecutor Marianne Hemmeter of the Ohio Attorney General's Office said the Ohio Supreme Court has ruled that classifying juvenile offenders as sex offenders at the time of their release from a state facility doesn't constitute double jeopardy.
Hemmeter also disagreed with Madison's claim that Ohio's sex offender classification based on age is unconstitutional.
"At the core of the juvenile system is the principle that, as a juvenile matures in age, he becomes increasingly responsible for his actions, and, with that, increasingly accountable for his delinquent acts. Following that principle, Ohio law draws age-based lines among juveniles all the time," Hemmeter said.
Hemmeter said juvenile judges have the discretion in making sexual offender classification rulings, for how long to report and when it can be terminated.
Hemmeter said sex offender reporting requirements were established to protect society. She said studies for sex offenders show they don't reoffend in the first several years but may as late as 20 years after.
A special grand jury investigating aspects of a juvenile rape case won't meet again until Aug. 12, the one year anniversary of the crime.
After the conviction of Mays and Richmond, Ohio Attorney General Mike DeWine called for a special grand jury to investigate all aspects of the case and whether additional people should be charged.
The grand jury has met only seven days since it was seated on April 15. The delays were needed to continue interviews with people and to analyze computers seized from Steubenville City School facilities in April, according to the attorney general's office.