Law restricting sex offenders' movements on Halloween challenged in

Daily Record and the Kansas City Daily News-Press, Oct 7, 2008 by Donna Walter

The American Civil Liberties Union wants a federal court to declare unconstitutional a new Missouri law requiring registered sex offenders to avoid "all Halloween-related contact with children."

In addition to avoiding contact with children, registered sex offenders are required to remain in their homes on the evening of Oct. 31, post a sign informing trick-or-treaters they're not handing out candy or treats and keep their porch lights off. Failure to comply with this law is a Class A misdemeanor.

The law applies to the upcoming Halloween and to every Oct. 31 that follows. The law took effect in August.

"We think this law crosses the line and effectively requires house arrest, which is an additional punishment on the folks," said Anthony E. Rothert, legal director for the ACLU of Eastern Missouri.

State Sen. Brad Lager, R-Savannah, who sponsored the amendment to a larger sex offender law, doesn't see it that way.

"These are sick individuals. These people are not normal," he said. "It's unfortunate and disappointing that the ACLU would choose to side with sexual predators."

The lawsuit was filed Friday in the U.S. District Court in St. Louis on behalf of two Jane Does and two John Does. It seeks a ruling on the constitutionality of the law as well as a preliminary injunction to prevent enforcement of the law for this year. Rothert has also asked the court for permission to use pseudonyms.

The suit names as defendants Gov. Matt Blunt, Attorney General Jay Nixon as well as the police chiefs and prosecuting attorneys that serve the areas where the plaintiffs live.

Three of the four plaintiffs live with their own children or stepchildren. The remaining plaintiff has "significant contact" with her minor grandchildren, the lawsuit states. Two of the plaintiffs were awarded custody of the children despite having been convicted of statutory sodomy and statutory rape, Rothert said.

He said the law violates the U.S. Constitution's ex post facto clause by punishing these individuals for crimes committed before the state law was enacted. It also violates the Missouri Constitution's prohibition on retrospective laws, he said.

Rothert said the law fails to provide adequate notice of what is, or isn't, a violation. It also punishes the offenders' children, he said.

"The only safe way [to comply] is to keep your child at home with you," he said.

Two counts in the lawsuit allege the state law interferes with the parents' right to raise their children.

Under the U.S. Constitution, "once you've served your time, you're not supposed to continue to be penalized for a crime you committed," Rothert said.

But Sen. John Loudon, R-Ballwin, who sponsored the overall sexual predator bill, said, "I guess you're balancing one convicted predator's rights versus the rights of their neighbors to have their kids be able to enjoy the holiday."

"My No. 1 priority is to protect kids," he said. "Sometimes you push the envelope when you do that."

The Halloween law "makes a lot of common sense," Lager said. "If the courts deem that it needs to be more specific in nature, that's what we'll do."

According to Lager's office, there are similar state or local laws in South Carolina, Virginia, California, Illinois, Texas, Maryland, Delaware and New Jersey. In Michigan and Wisconsin, officials encourage parents to check the sex offender registry before their children go out trick-or-treating, said Rich Germinder, who works in Lager's Jefferson City office.

But Rothert said he couldn't find any other state laws like the one in Missouri. "In almost every state, it's the people who are still on parole that have some kind of requirement that they stay at home with the lights off," he said. That's the way it is in both Maryland and New Jersey, he said, adding that extra conditions as part of probation or parole don't raise the same constitutional concerns.

"I was not able to find a law or a policy that applied to people who had already completed their probation or parole," he said.