Sex Offender Registry Status Lifted for Gay Man Snared by Sodomy Law

BY ARTHUR S. LEONARD | Caught up in a typical sting operation in Missouri in 1988, Jerome Keeney, Jr. was arrested by a St. Louis County vice cop, Robert Bayes, and the following year pled guilty to the charge of attempted “sexual misconduct.”

His crime? Groping an undercover police officer who sat with him in his parked car at a highway rest stop and chatted him up with the aim of provoking Keeney’s move. The St. Louis County Circuit Court imposed a suspended sentence and two years’ probation.

Kenney thought that was the end of it.

Missouri appeals court says state can’t now change terms of what rest stop sting victim copped to in 1988

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. The attempted “sexual misconduct” charge fell under the Missouri sodomy law, which became unenforceable due to the US Supreme Court’s 2003 decision in Lawrence v. Texas.

When Keeney received the startling 2010 notice from the State of Missouri, he protested and filed a petition with the St. Louis County Circuit Court, arguing he should not be required to register. The trial judge, Robert S. Cohen, ruled against him, citing three factors: that his conduct was not innocent at the time; that it was “in public” and so not constitutionally protected because Lawrence v. Texas only applied to consenting sexual conduct in “the home”; and that it was not consensual.

The state actually produced an affidavit from Bayes, 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 –– presumably during a routine conversation between two strangers in a parked car at a highway rest stop.

Keeney appealed, and the Missouri Eastern District Court of Appeals, on March 24, ruled in his favor. 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 federal statute defined “sex offender” as “an individual who was convicted of a sex offense,” including “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.

Missouri had enacted its own registration law back in 1994 and amended it in 2006 to require anybody with an obligation for registering as a sex offender under federal law to register.

Keeney had pleaded guilty to a charge of attempting to violate a Missouri law under which “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. This Missouri law, Judge Sullivan pointed out, was “in all relevant respects identical” to the Texas law struck down in the 2003.

When the Missouri Legislature amended the law in 2006, it 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” –– hence the significance of the vice cop Bayes’ affidavit 26 years after the fact.

Sullivan noted, however, that Bayes –– who appears to have a unflagging fidelity to his law enforcement mission –– specifically went to the highway rest area 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, Sullivan wrote. “To characterize himself today as a victim of unwanted sexual touching by Appellant that night is incongruous.”

Sullivan also wrote, “Homosexual deviate sexual intercourse is no longer a sexual offense in Missouri. As such, there is no logical existent reason to require Appellant to register on the sexual offender registry.”

Keeney has no avenue for getting the court to vacate his 1989 guilty plea, but he can sue to get a declaration he does not have to register as a sex offender, the appeals court found.

The state’s attempt to now argue Kenney’s conduct was not covered by the 2003 Lawrence ruling because it was not “consensual” and took place “in public” was rejected by the appeals panel. 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.”

Sullivan added, “It nearly goes without saying that Respondents also cannot bring forward newly manufactured evidence, i.e., Detective Bayes’ 2014 affidavit, to support a new theory of Appellant’s culpability.”

The court ordered Cohen, the trial judge, to grant Keeney the declaratory judgment he sought and ordered state officials to remove his name from the offender registry.

Keeney was represented by St. Louis attorney Michael T. George.

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