ALBION — The Indiana Sex and Violent Offender Registry is designed to protect the citizens of the state of Indiana — but some convicted offenders may become victim to stringent, statutory requirements.
The registry vigilantly tracks those convicted of sex and violent crimes, and allows the public access to their profiles and whereabouts. Accountability is a tenet of the registry; those on the list must meet a strict set of reporting rules or risk arrest under a felony charge of failure to register as a sex offender.
Registrants report for a period of 10 years or life, with the parameters set by state statute. This extended and, in some cases, lifelong punishment for sex offenders may fit the crime in some cases, but do all defendants deserve the same sentence?
Piling up felonies
Noble County Superior 1 Court Judge Robert Kirsch believes the county trial courts, prosecutors and judges, should be given discretion on who should register and how long they must abide by the strict rules of the registry.
“I’m elected because the public wants me to use my intelligence and discretion in judging cases,” Kirsch said, adding that in his opinion, “zero tolerance means zero brain.”
He recently made a statement by setting bond at $10 for a man being charged with failure to register. Noble County Sheriff Doug Harp said he was “dumbfounded” by the leniency.
Since then, Samuel Magos, 33, of Kendallville, has been arrested again and is facing four Level 6 felony charges of failure to register as a sex or violent offender. He is also facing a probation violation on his 2010 Class A felony conviction of child molesting. Magos served 10 years in the Indiana Department of Correction and was released in July 2014.
He had moved from one county to another, and filed on the sex registry in the new county but failed to alert the other county he had moved.
“It’s not like he was intentionally” dodging the registry, said Kirsch. “This is piling on and I didn’t like it.”
Other defendants in northeast Indiana courts face multiple pending cases alleging failure to register as a sex offender.
Ted and Tricia Benhower were convicted of sexual conduct in the presence of their children in 2007 and continue to rack up felonies due to their failure to meet the requirements of the registry.
Tricia, 47, of Orland, was sentenced to three years on a Level 5 felony conviction of failure to register as a sex offender on Jan. 29 in Steuben Circuit Court. She has a previous conviction for failure to register.
Ted, 58, like Tricia, was convicted of two counts of performing sexual conduct in the presence of a minor, and served about a year and a half in prison. He violated his probation in 2008 and was sentenced to serve about another year in jail from his suspended sentence. Since then he has been convicted of failure to register twice and is currently charged with three Level 6 and two Level 5 felony allegations of failure to register along with an allegation of habitual offender, which could substantially lengthen his sentence under another conviction.
Ted is scheduled for a pretrial conference in Steuben Superior Court on March 5. Judge Randy Coffey, who arraigned him on Jan. 31, granted his public defender Robert Hardy’s request to order an examination to determine if Benhower is competent to stand trial.
Kirsch said the registry puts a burden on some defendants “who have fairly limited education, abilities and means.” As an example, he said, he’s seen defendants who would have a hard time filling out a job application, let alone meeting the various time lines of registry reporting.
“It’s a trap,” said Kirsch.
Following the rules
The Indiana Sex and Violent Offender Registry includes numerous rules for offenders to follow.
Kirsch says it is “too onerous.”
He said the scope of who is included on the list has grown. “I question whether all these particular offenders need to be on the registry,” Kirsch said.
The black-and-white requirements of the registry tie the hands of the courts, Kirsch said. When it comes to a person pleading guilty to a crime to conclude a case, “oftentimes the biggest problem is the sex offender registry.”
Effective Jan. 1, 2003, Zachary’s Law required sheriff’s departments to jointly establish the Indiana Sex and Violent Offender Registry to provide detailed information about individuals who register as sex or violent offenders in Indiana. The purpose of the registry is to inform the general public about the identity, location and appearance of sex and violent offenders who live, work or study in Indiana. The Indiana Department of Correction oversees the program with registration at county sheriff’s departments.
Every time a person changes address or travels away from their address for more than 72 hours, the sheriff’s department must be notified. They must divulge all email and social media addresses and vehicles registered in their names. They must have a photograph taken every 90 days.
The rules are written in several voluminous sections of Indiana Code. A fund has been created to assist state and local officials in monitoring the registry.
“These people have committed serious offenses and I’m not defending them in any shape or form,” said Kirsch.
However, he said he does not feel like every person labeled a sex offender is the same type of person. There are those that should be closely monitored, he said. There are others that do not meet the criteria of predators, said Kirsch.
“They are not necessarily evil people,” he said. “The registry paints with a very broad brush.”
Harp said the sex offender registry exists to keep the public safe, and it’s the sheriff’s duty to enforce it.
“We have a lot of time and resources used to track those people and when we have something like this, it’s almost like we’re wasting our time,” Harp said after releasing Magos on the $10 bond.
Ted Benhower violated the registry in the same way that Magos violated it, by allegedly not residing at his registered address.
Failure to register cases have made their way to the Indiana Court of Appeals, and the court has regularly affirmed the trial courts’ convictions.
A defendant who was convicted of robbery and rape, but whose rape conviction was vacated on double jeopardy concerns, can still be required to register as a sex offender as a condition of his probation, the Indiana Court of Appeals affirmed in 2013. Daquan Whitener was charged with Class A felony robbery and Class B felony rape and was convicted by a jury. The trial court vacated the rape conviction because of double jeopardy concerns. Whitener was also ordered to register as a sex offender as a condition of his probation.
On Jan. 24, the Michigan Supreme Court reversed a Michigan Court of Appeals finding that Boban Temelkoski remain on the sex offender registry and reinstating the order of the Wayne Circuit Court to remove him “on the basis that requiring him to register violates due process.” Temelkoski admitted to touching a girl’s breasts as a first-time offender under the Holmes Youthful Trainee Act, and in 1997, after successfully completing the program’s probation and community service, his case was dismissed.
Three convicted rapists filed suit in Hennepin County (Minnesota) District Court in January, challenging a 2016 ordinance that bars convicted sex offenders from living within 2,000 feet of any school, day care center, park, playground, public bus stop or gathering place within the city of Dayton, Minnesota. They remain incarcerated though the court approved their transfer to a monitored group home.
This month, the Mitchell Hamline School of Law in Saint Paul, Minnesota, and Professor Eric Janus announced the creation of the Sex Offense Litigation and Policy Resource Center. The purpose of the center is to collect and disseminate information about cases related to sex offender policy and laws.
“Our aim is to create a national network of lawyers and social scientists dedicated to holding our sexual violence policies accountable both to the Constitution and to the growing body of knowledge about effective prevention strategies,” said Janus, who has written two books on this subject: “Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State” and “Sexual Predators: Society, Risk, and the Law.”
In “Failure to Protect,” Janus argues that “sexual predator” laws are counterproductive. He said the predatory nature of sex crimes has been over inflated, as most crimes of sexual violence are committed against acquaintances or family members. He also posits that some new laws may be infringing on the convicted offenders’ rights.