Just Because You Don’t Think It’s a Sex Crime, Does Not Mean It Isn’t: An Overview of Sexual Imposition Laws in Ohio

The average person has a general idea of what constitutes rape or sexual battery, but are not aware that certain reckless behavior or sexual contact with an impaired person constitutes the criminal offense of sexual imposition.

What is Sexual Imposition?

According to Ohio Rev. Code § 2907.06, it is a criminal offense for a person to have sexual contact, cause another person to have sexual contact, or cause two or more persons to have sexual contact with a person who is not their spouse when:

  • The alleged offender knew the sexual contact was offensive or the conduct was reckless;
  • The alleged offender knew the other person’s ability to control the offender’s conduct was substantially impaired;
  • The alleged offender knew the other person submitted because they were unaware of the sexual contact;
  • The alleged offender was at least 18 at the time of the offense and four or more years older than the other person, and the other person was 13 at the time of the offense but less than 16 years old; OR
  • The alleged offender is or was a mental health professional who induced a client or patient to believe the sexual conduct was necessary for mental health treatment.

Sexual Imposition Criminal Penalties

Sexual Imposition may be a misdemeanor of the first or third degree depending on the defendant’s previous sexual offense convictions. A first degree misdemeanor is punishable up to 180 days in jail and a fine of no more than $1,000. A third degree misdemeanor is punishable up to 60 days in jail and a fine of no more than $500.

Ohio Sexual Imposition Cases

While the aforementioned statute appears straight forward, there has been much debate over what constitutes sexual imposition and the evidence necessary to support a criminal conviction.

It is well established in Ohio law that a person cannot be convicted of sexual imposition solely based on the testimony of the alleged victim, but how much evidence is necessary to support a sexual imposition conviction? Does an alleged victim have to prove force or injury?

In the cases below, the Ohio Supreme Court has clarified the elements of a sexual imposition conviction and corroborating evidence necessary to support a sexual imposition conviction.

State v. Economo, 76 Ohio St.3d 56, 666 N.E.2d 225 (Ohio, 1996)

In State v. Economo a medical doctor was convicted of two counts of sexual imposition after he allegedly inappropriately touched a female patient during two office visits. He allegedly massaged her private areas and rubbed his pant-covered erect penis on her arm. The Court in Economo reasoned the aforementioned conduct was offensive and reckless.

The defendant in Economo argued that the aforementioned conduct could not be corroborated other than by testimony of the alleged victim and her sister. The Court rejected his argument stating that sexual imposition is different from other sexual offenses as it does not involve force. A victim of sexual imposition will likely not have any bruises or marks to evidence the attack.

The Court reasoned that the other evidence, including proof that the victim had a doctor’s appointment with the defendant on the dates of the alleged assaults, the victim and the defendant had a 2-year patient-physician relationship, the victim’s fear of being alone in an exam room with the defendant, and the sister’s testimony that the victim was near tears after the appointment was sufficient proof the sexual imposition occurred. The defendant’s sexual imposition conviction was reinstated.

State v. Guenther, 2006 Ohio 767 (OH 2/22/2006), 2006 Ohio 767 (OH, 2006)

The defendant in Guenther was convicted of one count of sexual imposition and one count of gross imposition. The defendant allegedly inappropriately touched a female co-worker inappropriately on at least three occasions.

According to the testimony of the testimony of the victim, the defendant touched the victim’s breast by rubbing his chest against hers on one occasion. On the second occasion another male blocked the victim from exiting the room and the defendant touched the victim’s breast. On the third occasion the defendant prevented the victim from exiting her chair so he could touch her breasts in a small room.

The victim’s testimony was corroborated by the workplace supervisor, who had not witnessed the inappropriate touching, but was aware the victim was visibly shaken around the defendant. The supervisor was also afraid of the defendant and attempted to prevent his access to the victim.

The Court in Guenther reasoned the aforementioned evidence was sufficient to support his conviction and affirmed his conviction of sexual imposition and gross sexual imposition.

Conclusion

A sexual imposition case is fact intensive and requires a strong defense. While you may be falsely accused or your actions may have been misinterpreted, this may not be properly heard or believed by the jury in criminal court.

It is highly recommended to consult an experienced sexual imposition defense attorney if you are facing sexual imposition or gross sexual imposition charges in Ohio. Brian Joslyn of the Joslyn Law Firm is a trial proven sex crimes defense attorney.

Brian Joslyn has years of experience defending individuals facing sexual imposition charges. He is familiar with the tactics of the sex crimes investigators and prosecutors. He will skillfully examine all the evidence against you and develop the strongest defense possible.

If you have been charged with any sex crime, including sexual imposition, gross sexual imposition, rape, or child pornography contact the Joslyn Law Firm immediately at 614-444-1900 for a free evaluation of your case.

The Joslyn Law Firm diligently defends individuals throughout Ohio, including Franklin County, Pickaway County, Madison County, Delaware County, Licking County and Fairfield County.

References:

State v. Economo, 76 Ohio St.3d 56, 666 N.E.2d 225 (Ohio, 1996)

State v. Guenther, 2006 Ohio 767 (OH 2/22/2006), 2006 Ohio 767 (OH, 2006)

Because Ladies Lie: Eliminating Vestiges of the Corroboration and Resistance Requirements from Ohio’s Sexual Offenses, Cleveland State Law Review, 2014.

 

Attorney for Sealing Records in Columbus, Ohio

Ohio law provides for a two-step process for sealing records. First, the trial court must determine if a person is eligible; only then can it proceed with a determination of facts and decide whether to seal a record. The specific requirements for eligibility vary depending on whether a person is seeking to:

  • Seal records related to arrests and cases ending in “not guilty” findings, dismissals, and “no bill” verdicts; or
  • Seal records of convictions and bail forfeitures. See R.C. 2953.32 and 2953.52.

Call the criminal defense attorneys at the Joslyn Law Firm to learn more about sealing a criminal record in Columbus, Ohio, or the surrounding areas in Franklin County, Ohio. Let us put our experience to work for you.

Is the Applicant to Seal an Eligible Offender?

When a person seeks to seal a record of a conviction, it must be determined if he or she is an “eligible offender” which means the court must determine whether:

  • The criminal record reflects a permissible number of convictions;
  • The conviction or convictions sought to be sealed are currently eligible to be sealed (based on the time elapsed since the time of final discharge and the nature of the conviction); and
  • No criminal proceedings are currently pending against the applicant.

See R.C. 2953.31(A); 2953.32(A) and (C)(1)(a) and (b).

Ohio Revised Code 2953.31(A), as amended by 2012 Am.Sub.S.B. No. 337 (“S.B. No. 337”) expanded the number of offenses subject to the sealing of records. When determining whether an applicant is an “eligible offender,” the court must consider whether the person:

  • Was convicted of an offense in Ohio or any other jurisdiction;
  • Has no more than one felony conviction;
  • Has no more than two misdemeanor convictions*; or
  • Has no more than one felony conviction and one misdemeanor conviction in Ohio or any other jurisdiction.

*Effective September 19, 2014, the legislature removed the language “if the convictions are not of the same offense” when determining whether the offender had no more than two misdemeanor convictions. 2014 Am.Sub.S.B. No. 143.

Under R.C. 2953.32(C)(1)(a), when a trial court reviews an application to seal an adult criminal record, it must determine as a threshold question whether an applicant is an “eligible offender” as set forth in R.C. 2953.32(A) and 2953.31(A).

A court lacks jurisdiction to seal records when an applicant is not an “eligible offender.” State v. Dominy, 10th Dist. No. 13AP–124, 2013–Ohio–3744, ¶ 6.

Which Prior Convictions Are Counted?

In most cases, a conviction for a minor misdemeanor, for a violation of any section in Chapter 4507., 4510., 4511., 4513., or 4549. of the state Revised Code, or for a violation of a municipal ordinance that is substantially similar to any section in those chapters cannot be applied as a conviction that counts against the offender under the sealed records statute.

Convictions that do not apply under the statute include:

  • Violations of R.C. Chapters 4507 and 4510, which relate to administrative drivers license concerns;
  • R.C. Chapter 4511, which relates to traffic controls and signs;
  • R.C. Chapter 4513, which relates to vehicle equipment requirements and load limitations; and
  • R.C. Chapter 4549, which generally relates to motor vehicle crimes.

The following charges shall be considered convictions that may be applied under the statute:

  • A violation of sections 4511.19, 4511.251, 4549.02, 4549.021, 4549.03, 4549.042, or 4549.62;
  • A violation of sections 4549.41 to 4549.46 of the Revised Code;
  • A violation of sections 4510.11 or 4510.14 of the Revised Code that is based upon the offender’s operation of a vehicle during a suspension imposed under sections 4511.191 or 4511.196 of the Revised Code;
  • A violation of a substantially equivalent municipal ordinance;
  • A felony violation of Title XLV of the Revised Code, or
  • A violation of a substantially equivalent former law of this state or former municipal ordinance.

Offenses that may be applied as convictions under the statute are more serious traffic offenses, including:

  • Violations of R.C. 4511.19, operation of a vehicle while intoxicated;
  • R.C. 4511.251, street racing; and
  • R.C. 4549.02, 4549.021 and 4549.03, stopping after an accident involving property damage.

Also, many serious crimes may be applied as convictions, including:

  • R.C. 4549.042, involving the sale or possession of master car keys for illegal purposes;
  • R.C. 4549.62, vehicle identification number fraud;
  • R.C. 4549.41 through 4549.46, odometer fraud; and R.C. 4510.11 and 4510.14, driving under suspension.

List of Offenses Ineligible for Sealing

Ohio law provides that a conviction for certain types of offenses can never be sealed, even if it is the only conviction. Those offenses include:

  • Any first or second degree felony;
  • Any offense with a mandatory prison term;
  • Any offense of violence including:
    • 2919.22 Endangering children (*Division (B)(1), (2), (3), or (4))
    • 2911.12 Burglary (*Division (A)(1), (2), or (3) of section)
    • 2923.161 Improperly discharging a firearm at or into a habitation, in a school safety zone or with intent to cause harm or panic to persons in a school building or at a school function
    • 2921.34 Escape
    • 2921.04 Intimidation of attorney, victim or witness in criminal case
    • 2921.03 Intimidation
    • 2919.25 Domestic violence
    • 2917.31 Inducing panic (*unless the offense is a first degree misdemeanor)
    • 2917.03 Riot (*unless the offense is a first degree misdemeanor)
    • 2917.02 Aggravated riot
    • 2917.01 Inciting to violence (*unless the offense is a first degree misdemeanor)
    • 2911.11 Aggravated burglary
    • 2911.02 Robbery
    • 2911.01 Aggravated robbery
    • 2909.24 Terrorism
    • 2909.03 Arson
    • 2909.02 Aggravated arson
    • 2907.12 Felonious sexual penetration (former)
    • 2907.05 Gross sexual imposition
    • 2907.03 Sexual battery
    • 2907.02 Rape
    • 2905.11 Extortion
    • 2905.02 Abduction
    • 2905.01 Kidnapping
    • 2903.22 Menacing
    • 2903.211 Menacing by stalking
    • 2903.21 Aggravated menacing
    • 2903.15 Permitting child abuse
    • 2903.13 Assault (*unless the offense is a first degree misdemeanor)
    • 2903.12 Aggravated assault
    • 2903.11 Felonious assault
    • 2903.04 Involuntary manslaughter
    • 2903.03 Voluntary manslaughter
    • 2903.02 Murder
    • 2903.01 Aggravated murder

Additionally, any sexual offense not already listed is ineligible to be sealed, including:

  • Unlawful sexual contact with a minor
  • Illegal use of a minor in nudity-oriented material or performance
  • Sexual imposition
  • Importuning
  • Pandering obscenity involving a minor
  • Pandering sexually oriented matter involving a minor

Although a traffics offenses can never be sealed, they may not be applied as criminal convictions unless they are one of the traffic offenses listed below:

  • Knowingly offering to sell a car on which the odometer was tampered with
  • Tampering with an odometer
  • Sale or possession of a master key designed to fit more than one vehicle
  • Driving under suspension (after DUI or refusing to take breathalyzer/chemical test)
  • Offenses with purpose to conceal or destroy identity of car or its parts
  • DUI
  • Street racing
  • Various types of hit-and-runs
  • Leaving the scene of an accident

Facts Support the Required Findings to Seal Record

Once an applicant has been found to be an eligible offender, the statutes require a court to use its discretion to weigh a number of factors. The factors vary, depending on whether the person seeks to seal records of convictions and bail forfeitures or records relating to arrests and cases ending in dismissals, “not guilty” findings, or “no bill” verdicts. See R.C. 2953.32 and 2953.52.

When considering whether to seal records of a conviction for an eligible offender, a trial court must make statutorily required determinations of:

  • Whether the applicant has been rehabilitated to the satisfaction of the court;
  • Whether the reasons, if any, offered by the prosecutor in any written objection against sealing the records are persuasive; and
  • Whether the interests of the applicant in having conviction records sealed outweigh the legitimate needs, if any, of the state to maintain those records.

See R.C. 2953.32(C)(1)(c) through (e).

If the trial court finds that a person is eligible and determines that the facts supporting the other required findings should be construed to favor sealing the records of conviction, then the trial court “shall order all official records of the case that pertain to the conviction or bail forfeiture sealed.” R.C. 2953.32(C)(2).

Under S .B. No. 337, if the jurisdictional requirements and discretionary factors are met, a trial court is without authority to refuse to seal the records. Further, the sealing statutes are remedial and are, therefore, to be construed liberally to promote their purpose and assist the parties in obtaining justice. State ex rel. Gains v. Rossi, 86 Ohio St.3d 620, 622 (1999).

Additional Resources for Sealing an Ohio Record

Sealing Criminal Records in Ohio — Find information from the Ohio Justice & Policy Center and Ohio Poverty Law Center about the process of sealing a criminal record in Ohio. Find a list of offenses that are ineligible for sealing of adult criminal convictions.

Franklin County – answers to common questions — Visit the Franklin County Clerk of Courts website to find out more information about having a record sealed or expunged. The website discusses Ohio Revised Code statutes 2953.32 for sealing and 2953.36 for eligibility guidelines, and  2953.31 for first offender qualifications. Learn more about reentry participants and find templates, forms, and links to additional resources.

Sealing of Court Records in Franklin County — Visit the website for the Franklin County Municipal Court to learn more about sealing a court record in the Criminal/Traffic Department in Franklin County, Ohio. Record checks are obtained through the Franklin County Sheriff’s Department. An application for expunction can be filed in limited circumstances such as for certain firearm offenses and offenses committed by victims of human trafficking.


Finding an Attorney to Seal a Record in Franklin County, Ohio

If you want to seal a record in Columbus, Ohio, or the surrounding areas of Franklin County, then contact an experienced criminal defense attorney at Joslyn Law Firm. We can help you determine if you are eligible and if so, we can help guide you through the process as painlessly and as quickly as possible.