New law makes sex offenders hunker down for Halloween

Post-Halloween Update: Christian County arrests 18 sex offenders for not following Halloween law. Eighteen arrests. It’ll be interesting to see if the prosecutor charges these sex offenders and to see whether anybody challenges the law in these cases.

Update: Judge’s ruling complicates enforcement of new Halloween sex offender law. Part of the law ruled “ambiguous.” This still doesn’t address the issue of whether the law applies to most registered offenders.

Friday is Halloween and registered sex offenders have their marching orders under a new Missouri law.

Senate Bill 714 requires that registered offenders shall henceforth, on Halloween:

  • avoid all Halloween-related contact with children
  • remain inside their residences between 5 and 10:30 p.m. unless there is just cause to leave
  • post a sign stating, “No candy or treats at this residence”, and
  • leave all outside residential lighting off during the evening hours.

There is already a lawsuit filed challenging the law:Cape Girardeau County prosecutor responds to sex offenders’ suit over Halloween activities.

Since we haven’t yet seen a Halloween under this law, no one has yet been charged and no one knows if the federal courts will interfere.

One thing that will eventually be raised is that, when this law went into effect, it could not be enforced against anyone. This is because the Missouri Constitution prohibits what is called a “retrospective law.”  A retrospective law is one which creates a new obligation with respect to things that were done in the past. The State cannot impose a new duty on a person whose offense occurred before the duty was imposed. Doe v. Phillips, 194 S.W.3d 833 (Mo., 2006).

The new Halloween law went into effect on June 30, 2008. This would seem to make the new law unconstitutional because it claims to apply to all registered sex offenders. Under the Missouri Constitution, the new law should only apply to persons whose sex offenses occurred after that date.

Of course, that’s just my opinion.  As a practical matter, there will always be some prosecutors who will try to enforce this new sex offender law, without regard to its constitutionality. Politicians shovel this stuff out and the public eats it like ice scream.  Later on, the courts get to play the villain when they toss out the bad law.

So unless a sex offender wants to chance getting charged, he will need to hide out this halloween, just like the new law says. Until someone fights it and wins, the law is presumed to be constitutional.

Missouri would publish online identities of sex offenders

Rep. Tom Dempsey, of St. Charles is expected to sponsor a bill in the next session which would require all domain names, instant message names and e-mail addresses of registered sex offender to be posted in a public database.

Sex offenders would only be permitted to use their registered online identifiers. Any violation of the law would be a class D felony.

On the positive side, this law would allow people to check up on suspicious usernames, in hopes of avoiding contact with children by sex offenders.

Enforcement could be a problem, however, for both practical and legal reasons.

Practical Problems:

In announcing the bill, Gov. Blunt noted that recently deleted the user pages of 29,000 registered sex offenders. It goes, almost without saying, that MySpace only deleted the pages of the sex offenders who used their real names (either because they were stupid or perhaps because they weren’t doing anything wrong).

Many of those 29,000 will (by now) have opened new MySpace accounts under fake names and effectively gone underground.

This bill will suffer the same problem. Sex offenders can setup phoney email accounts all day long and no one will know. They know it will decrease their chance of getting caught, and if they do get caught committing a sex crime, the class D felony for failing to register will be the least of their problems.

In addition to AVOIDING sex offenders, beneficiaries of the registry would be child porn and other internet spammers who could use the list to find and target customers. Just kidding.

Legal Problems:

Whether the bill is effective or not, Rep. Dempsey will have to be careful crafting a bill. Here’s why:

  • Missouri’s Constitution provides, “that no . . . law . . . retrospective in its operation . . . can be enacted.” Mo. Const. art I, sec. 13. “A retrospective law is one which creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.” Doe v. Phillips, 194 S.W.3d 833 (Mo banc, 2006)
  • It seems that the registration requirement would create a “new obligation” on anyone who committed a registry crime. That’s unconstitutional if applied to anyone whose crime was committed before the effective date of this bill (presumably Aug 28, 2008).
  • As to the ban on using an unregistered username, that would seem to qualify as a “new disability.” So that sounds unconstitutional too.

If this is correct, this new law could not apply to any current sex offenders, but only to those who may join the rolls in the future.