Pedophile Park Ban Upheld
Federal appeals court sustains Indiana city's restrictions on
ex-convict's movements
By ARTHUR S. LEONARD
A panel of 11 federal appeals judges voted 8-3 to reject a
constitutional challenge to a lifetime ban on a convicted pedophile
entering recreational facilities of the city of Lafayette, Indiana. The
police chief there imposed the ban unilaterally after learning that the
man, identified in court papers as Joe Doe, was watching teenagers
playing in a city park while under treatment for his pedophilia.
The July 30 ruling drew a sharp dissenting opinion from three judges,
who argued that the plaintiff was being punished by the city for his
status as a pedophile and his sexual thoughts, in violation of his
rights to liberty and freedom of thought.
According to the majority opinion by Judge Kenneth F. Ripple and the
dissent by Judge Ann C. Williams, Doe had been convicted of a variety
of sexual offenses toward children between 1978 through 1991, none
involving violence or physical injury, and was under a psychologist's
care as well as participating in a sexual addiction support group. He
has not been charged with any actual sexual offenses since 1991.
However, Doe acknowledged that, while driving home from work one day in
2001, he followed an urge to drive to a city park and watch teenagers
playing softball. When he realized he might break down and attempt a
sexual interaction, he fled from the park and called his psychologist,
who recommended talking through the incident with his support group.
An anonymous caller tipped off the police department about Doe being
seen watching children play ball in the park. The police chief, after
discussing the matter with other city officials, sent Doe a letter
instructing him to refrain from entering any public park facilities,
including ball fields, neighborhood parks, a zoo, and several swimming
pools. The ban had no specified date of termination.
Doe sued the city, claiming that he was being "punished" for his
thoughts, and that this violated his rights under the First and 14th
Amendments of the Constitution. During his deposition, under
questioning from city attorneys, Doe admitted that he had not tried to
have sex with any of a group of four teens he was watching because he
had concluded it would not be "realistic" to approach that large a
group.
Federal Trial Judge Allen Sharp, in Hammond, Indiana, granted the
city's motion for summary judgment. A three-judge panel of the
circuit court reversed in June 2003, in an opinion by Judge Williams
that featured an angry dissent by Judge Ripple. The circuit court voted
for re-argument before all the active judges of the court, producing
the 8-3 vote affirming the trial court on July 30, with Ripple and
Williams changing places as decision-writer and dissenter.
Ripple decisively rejected the contention that the city was
"punishing" Doe for his "thought." Instead, he saw this as an
entirely reasonable action to take, in light of Doe's past criminal
record and professional testimony that pedophilia cannot be cured, just
controlled, and that nobody could guarantee that a pedophile would not
re-offend.
"The City has not banned him from having sexual fantasies about
children," wrote Ripple. "The inescapable reality is that Mr. Doe
did not simply entertain thoughts; he brought himself to the brink of
committing child molestation. He had sexual urges directed toward
children, and he took dangerous steps toward gratifying his urges by
going to a place where he was likely to find children in a vulnerable
situation."
Ripple saw Doe's actions as a potentially harmful lack of control,
signaling the need for an appropriate response by the city, even though
the incident was characterized by Doe's psychologist in a contrary
way. The psychologist testified that the ball field incident showed
that Doe had not given in to temptation, and that his seeking advice
from her afterward reinforced his awareness of the need to control his
actions. However, the psychologist conceded under cross-examination
that no guarantee could be given that Doe would not molest a child if
given the opportunity.
Although comments can be found in U.S. Supreme Court cases exalting the
right of individuals to stroll freely about and generally not to have
to account to the government for their wandering, Ripple found this
case distinguishable from others in which the Supreme Court has exalted
the right of individuals to stroll freely without government oversight
because of the peculiar nature of the interests at stake-especially
the state interest in protecting "innocent" youth.
In a passionate dissent, Williams argued that the facilities ban was
indeed punishment, and that punishment cannot be inflicted, consistent
with the Constitution, for thoughts unaccompanied by significant action
towards fulfilling the criminal act. Calling upon a recent decision in
which the Supreme Court struck down a federal statutory ban on the
possession of "virtual" child pornography, Williams observed that
the Court has been very consistent over the years in rejecting
punishment for "thought crimes," even when the thoughts involved
would strike many as reprehensible and even dangerous.
More significantly, Williams saw this as an instance of punishment
based on somebody's status, something the Supreme Court rejected more
than 40 years ago when it struck down a California law that made it a
crime to be present in that state while addicted to illegal drugs. The
Court held that it violates the Eighth Amendment's ban on cruel and
unusual punishment to impose a deprivation of liberty on somebody
because of who they are, rather than what they have recently Williams
compared the ban to a prosecution of a person with a criminal record of
robbery, "simply because she or he stood in the parking lot of a bank
and thought about robbing it."
Doe's only further appeal at this time would be to the U.S. Supreme
Court. He is being represented by the American Civil Liberties Union of
Indiana.
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