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Wednesday, 07 November 2007 00:00

Sex offenders and civil liberties: Ordinance sparks debate over whether the two go hand and hand

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By Julia Merchant • Staff Writer

Convicted sex offenders don’t have many advocates, but a recent rush of laws banning them from public parks has called into question just how many civil liberties these people should have to give up.

Jackson County Sheriff Jimmy Ashe knows exactly how complicated this issue can be. Jackson County enacted an ordinance in September 2007 banning sex offenders from public parks, but at least one county commissioner pointed out that such a law would mean. A local man who is on the sex offender registry would be barred from watching his stepchildren participate in sports. Even Ashe, who helped push the ordinance through, admitted this was a unique set of circumstances for which he did not have an easy answer.

The bottom line for Ashe, however, is that these kinds of ordinances should apply equally to all sex offenders.

“These offenders have got themselves into this situation and it might be a mistake, but we still have to protect our children,” he said.

 

The worst of crimes

Sex offenses are among the most taboo of crimes in this country. Perpetrators are despised, harassed, and shunned by the rest of society. Offenders are permanently placed on a registry, their faces, addresses and crimes grouped together for all to see — an effort to alert the community and prevent further offenses from occurring.

But to what point should a person’s individual rights be eclipsed in an effort to protect the general public, particularly children?

To some, an ordinance banning sex offenders from public parks is a prime example of an attempt at protection that goes too far. These types of ordinances have been adopted by an increasing number of towns and counties in Western North Carolina — but not without a fight. After the town of Woodfin in 2005 became the first municipality in the state to adopt an ordinance banning sex offenders from public parks, the American Civil Liberties Union sued on the grounds that that the prohibition was too broad and allowed for no exceptions.

“Obviously, state and local governments have a duty to protect their society. The problem is that we have to balance that goal with the rights of the individual and civil liberties,” said Todd Collins, an assistant professor of political science at Western Carolina University who teaches a class on constitutional law.

The ACLU lost the case against Woodfin and a subsequent attempt to appeal was turned down by a North Carolina Court of Appeals in an Oct. 2 decision this year. Since the ordinance was upheld, other towns in WNC have moved to adopt their own versions.

Canton was one of the first. It did not even wait for a court verdict on the Woodfin case, moving to enact the ordinance in May 2005. An ordinance was adopted in Jackson County in late September of this year, and Maggie Valley passed a similar law on Oct 23.

In Waynesville, a similar ordinance was temporarily tabled until town attorney Woodrow Griffin could research similar laws and provide more information to the town board.

 

The sex offender registry

Some who are critical of ordinances banning those on the state’s sex offender registry from public parks believe there are substantive problems with the state’s sex offender registry itself.

In North Carolina, individuals must list their name on the registry when convicted of offenses against a minor or a sexually violent crimes (the latter category includes rape, assault, etc.). Some offenses against a minor, though, have nothing to do with sex. Instead, kidnapping and abduction by a non-parent fall under this category. That means a grandparent, stepparent or parent who takes a child without explicit permission will be listed on the sex offender registry.

Additionally, individuals who committed an offense that would cause them to register as a sex offender in another state — even if that crime wouldn’t cause them to have to register in North Carolina — still have to put their name on the sex offender registry. Collins said this situation isn’t unusual. State laws are often conflicting, and the sex offender registry is governed by each state rather than the federal government.

For example, Katy Parker, legal director of the ACLU of North Carolina, cited the recent Supreme Court case of a 17-year-old male jailed for having consensual oral sex with a 15-year-old in Georgia. Under North Carolina law, a perpetrator must be six years older than a victim under the age of 16 to be convicted of a sex offense. Though this law differs from the law in Georgia (where consensual sex between persons close in age is punishable), a person convicted under Georgia law would be forced to register as a sex offender in North Carolina.

 

No exceptions

The above instances, say the ACLU and others who question aspects of the ordinance, serve to illustrate what is perhaps the biggest flaw in banning sex offenders from public parks — the ordinances cast too wide of a net. Indeed, there are no exceptions — all registered sex offenders are banned from public parks — and there’s no process to appeal.

In the ACLU’s case against Woodfin, the organization represented a convicted sex offender named David Standley. Standley was convicted in 1987 of attempted battery and aggravated assault against a woman in Florida. Standley, who moved to Buncombe County in 2004, has since been debilitated by a stroke and resides with his mother.

“Our client, there’s no allegation he ever committed any offense against a child. He was convicted and served his time for an offense against an adult 20 years ago. He’s had a stroke; he lives with his mother. They should at least have a process where people like that who aren’t a danger could appeal to someone and say, ‘This shouldn’t apply to me,’” argues Parker.

Fred Hawley, a professor of criminal justice at WCU, agreed that in some instances the ordinance could be over-reaching.

“They stick you with a label of sex offender and you’re 40 years old and can’t take your children to a swing set,” he said.

Collins said that a lack of due process is likely the ACLU’s strongest argument against the ordinance.

“If the government is going to take away some of your rights, they have to give you an ability to contest that and state your side. If they want to take away your driver’s license, you have a right to appeal that.

“My point of view is that there could be problems with (the ordinance), both in how it’s implemented and how we monitor this. Without some exception, are we going to stop (a sex offender) from attending a family reunion at a park?” Collins said.

 

Justification

It’s not as if the ordinance against sex crime offenders being in public parks was implemented without justification. Though the ACLU does argue that the town of Woodfin didn’t have a specific incident to base the ordinance on — “the town admitted that there had been no prior instances of sex offenders in the park harming anyone or even any allegations that there was anybody approached,” said Parker — it’s fairly simple to correlate parks with places that sex offenders might be drawn to. In the case of pedophiles, this is particularly true.

“(Parks are) out in the open space; they tend to be a place where children congregate. It would provide access to children for a pedophile if they were wanting to do that,” said Emma Beckner, a family advocate for Kids Advocacy Resource Effort (KARE) in Haywood County.

“Sex offenders do in fact frequent those kind of venues, where if they can’t prey on a child, they can watch them,” Hawley agreed.

Jackson County implemented its ordinance in response to a problem with a sex offender hanging around a park where children played.

“We had an incident with a registered sex offender at a local park with numerous complaints that he was lurking around a particular area. Come to find out, he was waiting for people to pick him up for employment purposes. Nevertheless, it brought up some concerns because residents knew who he was,” Ashe said.    

Does the ordinance ignore the possibility that an offender can be rehabilitated? It’s possible, said WCU’s Hawley.

“With sex offenders, there’s a belief that they’re un-rehabilitatable. I’m not sure that’s true,” he said.

Recidivism rates among sex offenders are high, however, particularly among those who molest children, Beckner said. Of released sex offenders, 40 percent had committed a new sex crime within a year of being discharged from prison, according to statistics from the U.S. Department of Justice. Those numbers are too high maybe to even make exceptions for those who may truly be free of a desire to commit another sexual offense.

“The problem for towns, counties, and states is that sex offenders, particularly those that are habitual child molesters, we haven’t really found a good way to treat that or rehabilitate those individuals. That’s why states and counties are trying to come up with these sex offender ordinances and really try to protect society,” Collins said.

“Is that urge still in those people to commit that crime and to harm children? If it is, (the ordinance) should apply lifelong, but we can’t pick and choose and kind of look at every person,” said Collins.

“Any risk or chance of another child being sexually molested isn’t worth the risk,” agreed Ashe. “Personally, I don’t believe sex offenders who molest children can be rehabilitated.”

Even Hawley has come to feel, after years of research, that it is the rare case when an offender is truly rehabilitated.

“I’ve come to kind of re-examine that view, that maybe these guys are so damaged and such a potential harm for the community, that I think these guys are not real good prospects for rehabilitation,” he said.

 

False sense of security

Some caution that these ordinances, along with the sex offender registry, may give the public a false sense of security. In truth, a public park is not the most likely place for a sexual offense to happen.

“Kids are in much more danger in their homes from sexual predators. There are a lot of statistics that support this. One of the most frequent forms of sexual predation is from another child, usually a boy, who has been preyed on by an adult male,” said Hawley.

These offenses are most likely to occur between blood relatives and family members by marriage, Hawley said. And often, crimes go un-reported.

“An awful lot of people end up committing offenses who are not on the registry,” said Parker.

Additionally, the public parks ordinance isn’t the easiest to enforce. Police rely heavily on the help of the community. Local residents alerted Ashe to the presence of a sex offender at a local park.

“We have people call us and say, ‘such and such is on the registry, he’s a relative, he happens to be up at the playground right now.’ That’s basically all we can do to monitor what happens there,” said Waynesville Police Chief Bill Hollingsed. His town doesn’t yet have the ordinance, but they’ve been discussing adopting it for two years.

Police also work to familiarize themselves with the sex offender registry in their town or county and make sure it’s kept up to date.

“We do spot checks to make sure that person is still living at the residence. Any violations of failing to notify us is a violation of the law, and they can be charged for that,” Ashe said.

 

Tough balance

Questioning the constitutionality of an ordinance that is meant to protect children doesn’t win the ACLU any popularity points. That’s the balance the organization has had to strike — it’s not trying to let sex offenders off the hook, but it doesn’t want to see civil rights jeopardized.

“It’s a very hard issue, and it’s an issue that is tough to talk about, because nobody disagrees that we ought to be taking care of our kids. We think this just goes way beyond doing that,” Parker said.

“You’ve gone beyond saying people have to register. You’re saying if you’re on the list, you can’t go to certain places,” Collins agreed.

The ACLU’s stance is a lonely one. Few people want to appear as if they’re supporting the rights of sex offenders over the safety of children. There’s been no one to speak out about the ordinance at the meeting of WNC towns and counties that have adopted it. The ACLU actually stopped talking to all media about their case until recently, because they had received flack from all over the country for taking it on.

“It’s a very, very important thing to protect our kids. But when people’s constitutional rights are involved, you have to have some balance there,” said Parker.

 

Who Has The Ordinance:

Canton

Maggie Valley

Jackson County

 

Who Doesn’t:

Waynesville

Macon County/Franklin

Sylva

Swain County/Bryson City

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