458 S.W.3d 838
Mo. Ct. App.2015Background
- In 1988 Detective Bayes, undercover at a rest stop, entered Jerome Keeney Jr.’s car after being invited; Keeney touched Bayes’s clothed groin and was arrested.
- Keeney pled guilty in 1989 to attempt third-degree sexual misconduct (deviate sexual intercourse with a person of the same sex), received a suspended imposition of sentence and probation.
- The statute under which Keeney pleaded (former Mo. Rev. Stat. § 566.090(1)(3)) criminalized same-sex deviate sexual intercourse; that provision has since been repealed and its elements changed by later legislation.
- After federal SORNA (2006) and Missouri’s SORA obligations, Keeney was required to register as a sex offender in 2010 based on his 1989 conviction and sought declaratory relief in 2013 to be removed from the registry.
- The trial court granted summary judgment to the registries; the court of appeals reversed, concluding Lawrence v. Texas and the repeal/changes to Missouri law mean the underlying conduct is no longer a sex offense and Keeney should be removed from the registry.
Issues
| Issue | Plaintiff's Argument (Keeney) | Defendant's Argument (Registries) | Held |
|---|---|---|---|
| Whether Keeney must register because his 1989 conviction was for consensual same-sex conduct now protected by Lawrence v. Texas | Lawrence invalidates criminalization of same-sex sexual conduct; conviction no longer constitutes a sex offense, so registration not required | Conviction stands as historical fact; prosecutorial charging decisions and possible nonconsensual/public aspects make registration proper | Held for Keeney: Lawrence and statutory repeal mean the offense is no longer a sex offense; remove from registry |
| Whether evidence of nonconsent (victimization) or public conduct sustains registration despite the original charge | Keeney: He pleaded to a strict-liability statute without nonconsent/public element; registry cannot now relabel the conduct | Registries: Detective Bayes’s affidavit alleges nonconsensual touching and public conduct, which would support registration | Held for Keeney: Court refuses to rewrite the historical conviction or rely on post hoc allegations; prosecutor’s original charge controls |
| Whether subsequent legislative changes and repeal affect present registration obligations | Keeney: Missouri has repealed or rewritten the provision criminalizing same-sex deviate intercourse; no replacement criminalizes that conduct | Registries: SORNA requires registration for those convicted of qualifying sex offenses, and the conviction is still a historical fact | Held for Keeney: Repeal and Lawrence mean the underlying conduct no longer qualifies as a sex offense for registry purposes |
| Whether procedural remedies (vacatur) are required before removal from the registry | Keeney: Vacatur is not available, but declaratory relief against registry maintainers is proper (per Kauble) | Registries: The guilty plea remains a historical fact and cannot be relitigated; registry duty persists | Held for Keeney: Following Kauble, although plea cannot be vacated, registry maintainers may be ordered to remove names when the underlying offense is no longer a crime |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (invalidated criminal prohibitions on consensual same-sex sexual activity)
- State v. Walsh, 713 S.W.2d 508 (Mo. banc 1986) (upheld Missouri statute criminalizing homosexual acts as rationally related to public morality/health)
- State ex rel. Kauble v. Hartenbach, 216 S.W.3d 158 (Mo. banc 2007) (plea remains a historical fact but registry removal is appropriate where the underlying conduct is no longer a crime; suggests suit against registry maintainers)
- Glossip v. Mo. Dep’t of Transp. & Highway Patrol Employees’ Ret. Sys., 411 S.W.3d 796 (Mo. banc 2013) (majority avoided resolving sexual-orientation equal-protection issue; dissent noted Lawrence undermines Walsh reasoning)