'The Least of These:' A Constitutional Challenge to North Carolina’s Sexual Offender Laws and Section 14-208.8
Brian Patrick LiVecchi
affiliation not provided to SSRN
March 3, 2010
“We feel it is a good law. When a person takes advantage of a child, I don't worry about their constitutional rights." North Carolina state Sen. David Hoyle, Dem., sponsor of the North Carolina law that resulted in a registered sex offender being arrested for attending a chuch worship service.
The law, enacted as part of the nationwide response to the death of Jessica Lunsford, created zones into which offenders could not travel knowingly. These zones included such vague locations as places "where children gather." The offender, James Nichols, challenged the constitutionality of the law, and a superior court judge dismissed the charges against him, finding the law to be unconstitutional on several grounds. The State of North Carolina is currently appealing the decision of Superior Court Judge Allen Baddour, and are seeking to continue to enforce the law against church-going offenders.
This paper examines the evolution of contemporary sex offender regulations in general over the past several decades, beginning with the first registration requirements and covering the latest restrictions on travel, satellite based monitoring, and residency restrictions. The paper addresses the challenges that have been brought in each stage of this evolution, and culminates with an analysis of the constitutionality of North Carolina’s attempt to banish sexual offenders from their communities, and prevent them from meaningfully participating in society. The case of James Nichols is discussed as an example of the arbitrary and "knee-jerk" nature of legislative responses to sex offenders.
The paper also addresses several myths surrounding sexual crime, and exposes the error in basing legislation affecting fundamental rights on such myths as “stranger danger,” and the threat of sex offender recidivism. The paper discusses the impact that public opinion and the electoral process have on legislative responses to crimes against children and the media attention that those crimes receive.
The paper concludes with recommendations to the North Carolina General Assembly and North Carolina Courts that the legislature and courts of any state would be well served to consider in seeking to protect its children while safeguarding its constitution.
Keywords: sex offender, unconstitutional, free exercise, religion, registration residency restrictions
Date posted: March 30, 2010