SMU Law Review
46 Pages Posted: 18 Jan 2010
Date Written: January 15, 2010
This Article examines the emerging phenomenon and implications of sex offender covenants, the latest wave of sex offender legislation, under common law property rules such as touch and concern and the doctrine prohibiting restraints against alienation. The paper theorizes that courts use common law property rules to strike down personal “who” covenants, such as those based on race, age, disability, and often permanently debilitating sex offender status, that run afoul of public policy norms – most particularly, the wide availability of safe and decent housing for all.
The Article analogizes blanket sex offender covenants to their racially restrictive progenitors, arguing that both types of covenants are based on unsubstantiated fears that one population would sexually terrorize another. The modern-day fear is that convicted sex offenders will sexually prey upon children, whereas the underlying fear in the era of racial segregation was that black men, this country’s original sexual predators, would sexually prey upon infantilized white women. Finally, this Article looks to the sordid history of racial segregation for lessons and solutions to the modern-day problem of convicted sex offenders.
Keywords: restrictive covenants, convicted sex offenders
Suggested Citation: Suggested Citation
Tekle, Asmara M., Safe: Restrictive Covenants and the Next Wave of Sex Offender Legislation (January 15, 2010). SMU Law Review. Available at SSRN: https://ssrn.com/abstract=1537179