Doug Berman at Sentencing Law & Policy has an interesting post discussing the religious rights of sex offenders. Berman also directs us to a post by Cornell Law Prof. Dorf who discusses the issue in a bit more depth. From Sentencing Law & Policy:
Specifically, at the end of his post, Mike says this: "Is there a compelling interest in keeping registered sex offenders away from children? Of course." I am left wondering if "compelling interest" analysis is this easy. Some (perhaps many) "registered sex offenders" have not harmed a child and likely pose no special threat to children. Registered sex offenders include folks whose only victim was an adult and who engaged in fully consentual sex acts (such as a female prison guard who had sex with one of her prisoners). Do states so obviously have a "compelling interest" keeping these kinds of registered sex offenders away from all children in all settings?
More fundamentally, is Mike suggesting that any and all registered sex offenders could be categorically prohibited from ever going to a public sporting event or a political rally or a movie or even walking down the street because children might possibly be at the event or the rally or the movie or the street? I fully understand the gut instinct that we want to protect children from even marginally risky people in inherently risky places, but I am troubled by any analysis that is so quick to assume that all registered sex offenders are always so risky that they can and should be treated as if they were radioactive.
There has been a pretty active discussion about this case on the Criminal Justice Professor listserv. My inclination is that this type of challenge has a fair chance of success if 1) the offender can show that the restrictions essentially make all churches off limits if Sunday School counts as a day care; or 2) a secondary constitutional right besides free exercise is implicated. There are similar cases emerging across the country and I'm interested to see how the courts treat these claims.
I am a Registered Sex Offender. ALL of the laws which hundreds of governments have passed that do or can affect me are not acceptable. I was sentenced to a legal sentence by a court of a state. I completed that sentence and I will not accept any further punishments that I can legally avoid or maneuver around. Additionally, for the laws that I cannot avoid, the governments that have passed the laws owe me a debt equal to and exceeding any punishment/harassment retroactively placed upon me.
Because these laws are unacceptable, mostly idiotic, immoral, anti-religious, un-American, and very often illegal, I will do whatever I can to understand what it is that the people who want these laws would like for me not to do and then, as long as it is legal, I will do those activities as often as possible. Of course, that includes being around children very often. It is quite easy to have any number of children visit my home on a regular basis and it is completely legal.
These laws deserve retaliation. I have been Registered for over 10 years and the stupidity has done nothing but grow. I believe that all people who are Registered have a moral obligation to ensure that the laws do far more harm than good. Of course by "harm", I don't mean real, illegal harm, I simply mean "harm" in the sense that the morons who support these laws understand it - that is simply the "harm" caused by a Registered person being around children as often as possible.
Most people with sense understand that these laws aren't protecting anyone and are actually counterproductive. Unfortunately, I don't think those people include the vast majority of the people in the United States. I think we are going to continue to have our idiotic laws and then some, and they are going to continue harming our country.
Posted by: ieee | October 27, 2009 at 10:40 PM