Are Sex Offender Restrictions So Vague They’re Unconstitutional?

July 13, 2016

A group of convicted child sex offenders is challenging the Illinois law that bans them from parks and schools. They say key sex offender restrictions are so broad it’s impossible to know what is or isn’t allowed and that means the laws violate the constitution. They’re asking a federal judge to immediately suspend certain restrictions on every registered child sex offender in the state of Illinois.

One of the plaintiffs, who spoke on the condition of anonymity because the lawsuit is proceeding anonymously, is a former Chicago resident who now lives in Des Plaines.

John Doe, 58, was being evicted from his Chicago home in 2011, when sheriff’s deputies discovered child pornography on his computer.

John Doe said he deals with mental issues, like depression, which caused him to retreat into a “fantasy world” in which he imagined himself as a child. But he does not believe he did anything wrong.

“The line between good and bad is often very gray,” John Doe said. “I was never attracted to children sexually. I never touched anyone of any age inappropriately.”

In 2012, his name was permanently added to the list of child sex offenders in Illinois.

“At the very beginning … when the police were interviewing me and they told me ‘aw, you’ll just probably have to register for a while or whatever,’ you know I didn’t really realize how much this was going to affect my life and for how long,” John Doe said. “In order to be eligible for probation I had to find a place to live, and it was very hard to find anywhere in the city that … wasn’t close to a park or a school. But also, I was unemployed, and I had this arrest on my record.”

John Doe eventually found a home. He rents a trailer in suburban Chicago at a place that charges by the week.

He and his fellow plaintiffs are challenging four specific sections of Illinois’ child sex offender law: a ban on being near parks, a ban on being near schools, a ban on being at places with services exclusively for minors and a ban on participating in holiday events involving children.

“The problem we’ve identified with these particular statutes is that ... they’re so vague that people who are required to register can’t actually know what’s prohibited,” said John’s attorney Adele Nicholas.

Nicholas pointed to the ban on participating in holiday events involving children.

“A lot of people understand the law to prohibit people from dressing as Santa Claus, or working as an Easter bunny at the mall or something like that. But the law as written is much broader than that,” Nicholas said.

The statute lists things that could be used to get close to children, but it also says the ban is not limited to the specific examples.

For one of the registered sex offenders in the suit, that means he isn’t sure if he’s allowed to go to his town’s 4th of July Parade.

Another plaintiff wants to visit his granddaughter, but she lives within 500 feet of a subdivision playground.

State police told him he was allowed to visit as long as he walked straight from his car and back -- but the local cops said he wasn’t allowed to be there at all.

Two of the people suing are regular churchgoers - but they aren’t sure if they’re allowed to attend services because their churches have youth ministries.

“The language of the statute that says you can’t be present at or associated with a facility that provides services directed towards minors is incredibly broad,” said Nicholas. “It’s unclear whether that might apply to a hospital that has a pediatrician or a pediatric unit in it.”

I don’t have a lot of sympathy for you as a policymaker".State Rep. Michael Zalewski

For John Doe, the statutes mean he can’t do some of the things that make his life worth living.

There’s a monthly philosophy discussion at a local library, but that library has a kids section. Would it be a felony if John Doe attended?

And one of John Doe’s favorite activities is golfing - it’s a solitary, adult sport.

But many of the courses in the area are owned by the park district. Does that make them parks?

“If you’re a registered sex offender who wants to play golf, I don’t have a lot of sympathy for you as a policy maker,” said Illinois State Rep. Michael Zalewski.

Zalewski is a former Cook County state’s attorney who has tried some sex offense cases.nich

He has spent time with victims and their families. He believes in tough sex offender restrictions to keep kids safe. That’s why he’s voted for, and sponsored, several bills adding to the sex offender restrictions.

“Those four restrictions, to me constitutionally, I don’t see how they’re vague at all,” Zalewski said.

But Zalewski is also aware of the problems created by a legislature that keeps passing more and more laws to restrict sex offenders.

Right now, there are 29,000 registered sex offenders in Illinois.

“Law enforcement tells us it’s becoming an unwieldy problem for them,” Zalewski said. “So if … the Chicago Police Department doesn’t have a grip on prohibited places and how many registered offenders there are and whether someone is renewing their registration, then they come to us as policymakers and say ‘help me, because I need your help.’ ”

Zalewski is part of an effort in the state legislature to take a closer look at all of the laws restricting sex offenders. The bill to create a sex offender registration task force is awaiting Gov. Bruce Rauner’s signature.

“Places of worship, you know living facilities are things that ... the task force is gonna evaluate,” Zalewski said. “This is something that policymakers are going to be forced to confront.”

Does not seem to be a hard question."Prof. Mark Rosen

Constitutional scholars are split on the prospects of the lawsuit.

“It’s not the sort of lawsuit that would be laughed out of court, but it’s difficult to win these kind of challenges,” said Prof. Mark Rosen from IIT Chicago-Kent College of Law.

Rosen has taught constitutional law at IIT Chicago-Kent for more than 15 years. He said lawmakers write broad laws on purpose, to avoid leaving out important elements.

“The statute that’s being challenged is, in my estimation, is reasonably written, and the fact that it has uncertain applications in some circumstances is true really of all statutes,” Rosen said.

Professor Hugh Mundy of John Marshall Law School agrees that most legislation is broadly written, but he thinks the sex offender restrictions being challenged may be unconstitutional.

“Illinois is like a lot of states in that the well-intentioned effort to ensure that children are protected has lead to restrictions that are vague and fail to provide clarification to the offenders and create opportunities for offending that are unintended and benign,” Mundy said.

Mundy said the case of John Doe #2, whose granddaughter lives near a subdivision playground in Romeoville, is a perfect example of the lack of clarity in the law.

In the complaint, Doe #2 alleges that state police told him he could visit his daughter as long as he walked straight from the car to the house and back -- but the local police department told him he wasn’t allowed to be there at all.

“When law enforcement are giving conflicting guidance ... then the language does start to encroach on what might be considered by a court as unconstitutionally vague,” Mundy said.

But Rosen saw that same example as an obvious place where the ban on public parks just doesn’t apply at all.

“A condominium complex is not a public park, that does not seem to be a hard question,” he said.

If Rosen’s interpretation is correct, then Illinois legislators have passed a law that allows a convicted child sex offender to swing on the swings at a privately-owned playground, but not swing a driver at a publicly-owned golf course.

Kinda defeats the purpose of my therapy."John Doe

Which gets to the question Nicholas and John Doe #1 want lawmakers to ask themselves: Do these laws actually help protect children?

John Doe doesn’t think they do.

Like the rule that forced him out of his hometown Chicago, away from family and friends, and into a trailer in Des Plaines.

“One of the behaviors that led to my offending was a feeling of isolation and loneliness,” John said. “And now I kinda feel like I’m in isolation and living far away from the people who are my support group. And that kinda defeats the purpose of my therapy.” 

The Illinois Attorney General, who represents the state in lawsuits, declined to comment.

Both sides are due in court Friday.

Story source: WILL