Missouri Appeals Court Frees Gay Man from Sex Offender Registration Requirement

In 1988 Jerome Keeney, Jr., was arrested in a typical sting operation by a St. Louis County vice cop, and pled guilty in 1989 to the charge of attempted “sexual misconduct.”   His crime?  Groping an undercover police officer who specifically sat with him in his parked car at a highway rest stop and chatted him up seeking to provoke such a move.  The St. Louis County Circuit Court imposed a suspended sentence (no jail time) and two years’ probation.  So he thought that was the end of it.

Flash forward to January 8, 2010, when Keeney was instructed to file a registration with the Missouri Sex Offender Registry on account of that 21-year-old guilty plea.  Outrageous, especially considering that the offense to which he pled guilty was no longer a crime.  He had been charged with attempting to violate the Missouri sodomy law, which became unenforceable due to the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, and which was subsequently repealed by the Missouri legislature.

So Keeney protested and filed a Petition with the St. Louis County Circuit Court, arguing that he should not be required to register.  The trial judge, Robert S. Cohen, ruled against him, holding that his conduct in 1988 was not innocent at the time, that it was “in public” and so not constitutionally protected because Lawrence v. Texas only protected consenting sexual conduct in “the home,” and that it was not consensual.  Indeed, the state produced an affidavit from the plainclothes police officer, sworn to in 2014, claiming that it was not consensual.  Keeney had leaned over and groped him, said the officer, without his permission.

Keeney appealed, and the Missouri Eastern District Court of Appeals ruled in his favor on March 24 in Keeney v. Fitch, 2015 Mo. App. LEXIS 307.  A unanimous three-judge panel ruled that Keeney should not be required to register.

Writing for the court, Judge Sherri B. Sullivan filled in the history.  In 2006, Congress passed a law instructing states to set up sex offender registration systems and require previously convicted sex offenders to register.  The definition of a “sex offender” in the federal statute is “an individual who was convicted of a sex offense,” which includes “a criminal offense that has an element involving a sexual act or sexual contact with another” and “an attempt or conspiracy to commit” that sexual act or contact.  The federal law specifically applies to convictions under state sex crimes laws.

Missouri had enacted its own registration law back in 1994, which was amended in 2006 to provide that anybody required to register as a sex offender under federal law was also required to register under the state law.

Keeney had pleaded guilty to a charge of attempting to violate a Missouri law that provided that “a person commits the crime of sexual misconduct if he has deviate sexual intercourse with another person of the same sex.”  The charge was that his groping of the vice cop was a prelude to oral or anal sex that would violate the statute.  But, Judge Sullivan pointed out, this Missouri law was “in all relevant respects identical” to the Texas law struck down in the 2003 Supreme Court decision.

The Missouri legislature had amended the law several times after Keeney’s arrest, but the most significant amendment, in 2006, removed the reference to “deviate sexual intercourse with another person of the same sex.”  As of 2006, the statute defines “sexual misconduct” to include when a “person purposely subjects another person to sexual contact without that person’s consent.”  This explains why the state, in opposing Keeney’s new lawsuit, produced an affidavit from the vice cop claiming the he had not consented to be groped by Keeney.

Missouri’s old sodomy law had been challenged in state court, but the challenge was rejected in 1986, two years before Keeney’s arrest.  In 2013, in a dissenting opinion in the Missouri Supreme Court, several justices commented that the 1986 decision was “no longer viable in light of  Lawrence v. Texas.”

“Homosexual deviate sexual intercourse is no longer a sexual offense in Missouri,” wrote Judge Sullivan.  “A such, there is no logical existent reason to require Appellant to register on the sexual offender registry.”  Although there is no procedure available for Keeney to get the court to vacate his 1989 guilty plea, he can sue to get a declaration that he does not have to register as a sex offender, contrary to what Judge Cohen had ruled in rejecting his case.

The court rejected the state’s attempt to try to expand upon the 1988 charges in order to label Keeney’s conduct as still unprotected by Lawrence v. Texas because it was not “consensual” and took place “in public.”  He was charged with attempting to violate the sodomy law, Sullivan pointed out.  “From the defendant’s perspective,” she wrote, “for his guilty plea to be a voluntary and intelligent admission that he committed the offense leveled against him by the prosecutor, the defendant must receive real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.  The prosecutor’s choice in charging Appellant in 1988 cannot be revisited or revised today.  Appellant’s plea is now a part of history.  Additionally, it nearly goes without saying that Respondents also cannot bring forward newly manufactured evidence, i.e., Detective Bayes’s 2014 affidavit, to support a new theory of Appellant’s culpability.”

Besides, Sullivan pointed out, Detective Bayes specifically went to that location to attract solicitations from gay men, since his goal was to “rid the area of homosexual behavior.”  Getting somebody to grope him so he could make an arrest “would be considered a success by Detective Bayes” given his mission.  “To characterize himself today as a victim of unwanted sexual touching by Appellant that night is incongruous.”

The court raised the same objection to the state’s attempt to introduce the “public sex” issue, since once again that was not a focus of the 1988 charges against Keeney.  Since the state did not charge him “with a crime with a public aspect to it” at that time, that was no longer relevant to whether he should have to register based on that guilty plea.

The court concluded that Judge Cohen erred in not granting Keeney’s motion for summary judgment, reversed Cohen’s judgment, ordered Cohen to grant Keeney the declaratory judgment he sought, and ordered the state officials to “remove Appellant’s name and all other registration information from the Missouri Sex Offender Registry.”

Keeney was represented by St. Louis Attorney Michael T. George.  The court noted that its decision is not final until expiration of the time in which the state can file a motion for rehearing, most likely a mere formality.

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