Are Pedophile-Free Zones Constitutional? The Issues that They May Raise

By JULIE HILDEN


julhil@aol.com
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Tuesday, Aug. 30, 2005

The concept of "pedophile-free zones" seems to be gaining traction. As CNN recently reported, at least fourteen states, and four American towns, currently ban sex offenders from living near schools, parks and playgrounds, and other localities are considering similar restrictions.

In a recent column for this site, Marci Hamilton explained why such zones are unlikely to serve their purpose of cutting down on child sexual abuse: As Hamilton put it, "Adult bookstores are not mobile; people are," so pedophiles "will doubtless be able (either legally, or due to the limits of enforcement) to use the sidewalks and streets near schools and playgrounds," even if they do not live nearby.

Hamilton makes a strong argument that such laws will be ineffective - and that other measures, which she lists, will be far more effective in combating child sex abuse. But not all ineffective laws are unconstitutional. Will pedophile-free zones be struck down when they face constitutional challenges in court?

In this column, I will discuss the constitutional implications of pedophile-free zone statutes. I will also discuss the intersection of, and contrast between, these laws and Megan's Laws - which create sex offender registries that are accessible to the public, either online or otherwise.

Are Megan's Laws an Unconstitutional Retroactive Punishment?

Megan's Laws have often been challenged on the ground that they violate the Constitution's Ex Post Facto Clause. Article I, Section 9, of the Constitution says "No… ex post facto law shall be passed." And this language has been interpreted to prohibit retroactive criminal laws - laws, that is, that make past behavior criminal, or retroactively increase the sentence for that past behavior.

There are a number of reasons such a prohibition is wise: Retroactive criminal laws are not only unfair, they may tend to target political opponents and/or minority groups whose behavior was perfectly legal at the time it occurred.

But to come within the scope of the Ex Post Facto Clause, a law must be punitive in nature; put another way, the Clause applies to criminal, not civil, laws. And defenders of Megan's Laws have argued - usually successfully - that the laws are not meant to punish pedophiles, but rather to protect children.

I think courts have been right to reject the Ex Post Facto Clause argument, when it comes to online registries. That's because I believe that the main reason for such registries is not punitive. Rather, it's exactly what Megan's Law proponents say it is: to ensure that parents can find out if their neighbors are sex offenders and, if so, keep their children away from them. Megan Kanka's own rape and murder was committed by a sex offender who lived next door, and was the impetus for the law.

I also think that it's perverse to ask the government not to publicize the names of those who commit serious, violent crimes that tend to be repeated. This is especially true given the existence of the Internet, and the public right of access to trial proceedings, if the government doesn't do this, someone else will, and their First Amendment rights will protect them in doing so.

(Indeed, I wish some private person or organization would create an online violent offenders registry! Certainly, the names are out there to be found, at your local criminal court. It does little good for parents trying to protect their children if they can easily find out if their neighbor raped a child, but not if he is a paroled murderer.)

When it comes to the "community notification" provisions of Megan's Laws, however, I do think that in some cases, a punitive purpose may well exist. Such provisions allow the police to alert the public when a registered sex offender moves into the neighborhood. The risk that such an alert might spark vigilanteism against an offender is especially high. This risk also exists with the registries, of course, but it is more limited, I think; the concerned parents who will check the registries will hopefully have prevention, not retribution, in mind.

In lieu of "community notification" provisions, I would rather see a more narrowly-tailored system in which those who have earlier checked a registry, can receive updates on new neighbors who are being added to it; such a system would, I think, serve a protective purpose while minimizing the risk of punitive vigilanteism against the offender. Rather than a widely disseminated warning to the whole community, the warning would then reach the concerned parents (or the concerned single persons seeking to avoid inadvertently dating convicted rapists) who are their real audience.

Are Pedophile-Free-Zones An Unconstitutional Retroactive Punishment?

What about pedophile-free zones? Are they punitive, protective or both? Do they violate the Ex Post Facto Clause, or are they constitutional?

Professor Hamilton's argument that such zones are ineffective, might also suggest they are punitive: If the zones predictably won't work, because pedophiles can freely stroll though them, then can they really have a primarily protective purpose?

In addition, as applied to offenders who, in reality, have little chance of re-offending, the pedophile-free zones can seem especially punitive. CNN's article focuses, for instance, on a New Jersey former teacher who slept with a sixteen-year-old female student years ago, lost his job, served his time, and now finds it difficult to find a home for himself and his family - even though he says he's learned his lesson.

In general, I think it is a mistake to mix those who commit statutory rape, and are relatively close in age to their victims (as may or may not have been the case with the New Jersey teacher), with those who commit actual rape or child sexual abuse. The former group of perpetrators committed less-serious crimes in the first place, and those within the former group are also less likely to reoffend. (Indeed, it seems a misnomer to call, say, a twenty-one-year-old who has consensual sex with a sixteen-year-old a pedophile).

Enforcing pedophile-free zones when it comes to these offenders typically wastes resources; putting these offenders on online registries typically only creates more data for busy parents to sort through, and to worry about, when such worry is probably not necessary when it comes to these lesser offenders. Moreover, the fact that registries reach those who, while young themselves, had consensual sex with an underage partner, but not those who commit violence, is absurd.

In addition, the laws as applied to young statutory-rape offenders may raise serious problems of constitutional due process, whether or not their purpose is to punish. Lumping extremely disparate offenders together may not give each offender the individualized process that is due.

Not Just an "As Applied" Issue: Are Pedophile-Free-Zones Generally Punitive?

Arguably, though, the problem with the pedophile-free-zone statutes is not just in their application to statutory rape, but in their every application. Here's the argument why such zones are punitive when applied to any offender: Their real purpose may be to make it difficult for a sex offender to locate in a given town at all.

That's because if every school, park, and bus stop is the center of a 2500-foot-in-every direction pedophile-free zone, all those overlapping zones may give the pedophile little remaining room to live. This effect suggests that the town at issue is punishing the pedophile - virtually running him out of town, as they might actually have done in the Old West.

This effect, in addition, is likely to be intensified when one town (or state) adopts the pedophile-free zone concept, and the next follows suit to avoid pedophile overflow from its neighbor. Indeed, if this phenomenon continues to occur town by town, it seems likely that some towns lacking pedophile-free zones will become pedophile havens - de facto all-pedophile prisons whose residents can leave for an afternoon or evening, but cannot relocate.

Woe betide any unfortunate child who must live in such a town. The problem with corralling all the pedophiles in a single town, is that innocent children will doubtless be corralled in there with them.

As a result, parents who might have been able to keep their child away from the pedophile next door, may not be able to keep him or her away from the ten pedophiles next door. And guess what: Such parents will doubtless be low-income parents, the kind who often must hold several jobs to support their families, so these may be "latchkey" kids who must walk around alone.

In the end, ironically, it may be the case that the real purpose behind pedophile-free zones is, as with Megan's Law, to protect children. But unlike Megan's Laws, the pedophile-free-zone laws may ultimately only protect certain children: those whose parents are wealthy enough to live in a pedophile-free town. Any parent can go to a public library to check a Megan's Law online registry. Not every parent will be able to afford to buy or rent in a pedophile-free town.

It may be significant, then, that New Jersey is an innovator in this area: The state is marked by extremes of wealth and poverty, and Not-In-My-Backyard issues often arise there. The state contains both impoverished cities such as Paterson, Trenton, and Newark, and wealthy suburbs whose residents commute to high-paying jobs in New York or Philadelphia.

Pedophile-Free Zones As a Condition of Probation: A Right-To-Travel Violation?

The Ex Post Facto Clause argument I raised above has an interesting inherent limitation: It prohibits only retroactive punishments. But what if legislatures were to empower judges to require pedophile to comply with pedophile-free zones in the future, as a condition of probation?

Doing so would moot any Ex Post Facto issue, for probation conditions are part and parcel of a criminal sentence - not a punishment imposed afterwards.

No Ex Post Facto argument would apply, but arguments citing the right to travel - an unenumerated constitutional right that has been implied by courts from other rights - and constitutional due process would still be available.

There would be something very odd about these arguments, however: The far more oppressive punishment of prison is constitutional. Also, the significantly more oppressive punishment of home arrest can be constitutionally imposed as a condition of probation. So, then, how can it be that staying away from pedophile-free zones around bus stops, schools, parks, and playgrounds cannot be imposed as a condition of probation?

It may be the case that our Constitution simply did not foresee, and prevent against, this type of punishment - even though it must have been akin to shunning or exile-type punishments with which the Framers were familiar. After all, the unenumerated right to travel seems a slim peg upon which to hang a constitutional prohibition when the persons affected are all convicts serving their sentences.

For similar reasons, due process challenges may also be weak when probation conditions are at issue: A convict has had the chance for the ultimate in due process - a jury trial with a free lawyer and subpoena power in the service of his own defense - and still has been convicted, a result that traditionally brings with it the forfeiture of many rights.

But what if the probation component of the sentence, mandating avoidance of pedophile-free-zones, were to go on forever? Possibly, a constitutional challenge could be based on Eighth Amendment proportionality - that is, on the argument that child sex abuse does not merit a lifetime punishment, even if it is a non-prison punishment. But that challenge, too, seems weak: Certainly, the crime is a serious one, so the disproportionality, if troubling, might not seem grave enough for a court to intervene.

Finally, if we end up being the only country that treats our pedophiles this way, an Eighth Amendment challenge based on the "unusual" natural of the punishment might be forthcoming. But don't look for an increasingly conservative Supreme Court to step in in favor of pedophiles anytime soon.

For all these reasons, pedophile-free zones may be the wave of the future - and constitutional challenges to them may lose, at least in the long run, when and if they are imposed as conditions of probation.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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