Suit Targets Sex Offender Law

Wendy Whitaker cannot live in her new home, a 106-year-old bungalow with rocking chairs on its front porch and an American flag flying from its white picket fence.

A month after Whitaker, 26, bought the house in Harlem, a small town in northeastern Georgia, police officers informed her that it was within 1,000 feet of a child-care center.

Whitaker is a registered sex offender: When she was 17, she had consensual sex with a 15-year-old boy.

For the last four months, Whitaker and her husband have lived in his brother’s cramped mobile home because Georgia law restricts sex offenders from living near child-care centers. And now they may have to move again. In April, Georgia Gov. Sonny Perdue passed a stricter law, which prohibits sex offenders from living within 1,000 feet of a school bus stop. Anyone who does not comply faces a minimum of 10 years in prison.

Hailed by its sponsor as the “toughest law in the country,” the act passed almost unanimously through Georgia’s General Assembly. But now it seems destined to become a textbook example of the difficulty in imposing tougher penalties on sex offenders.

Not only do sheriffs say the bus stop restriction would be almost impossible to enforce -- Georgia has more than 10,000 sex offenders and 150,000 school bus stops -- but human rights groups have raised the thorny issue of sex offenders’ constitutional rights.

On Thursday, two days before the law took effect, U.S. District Judge Clarence Cooper temporarily blocked the state from forcing sex offenders to move from homes near school bus stops. The restraining order remains in effect until July 11, when a hearing is scheduled on the constitutionality of the law.

Attorneys from the Southern Center for Human Rights, a nonprofit law center that filed a federal lawsuit last month, argue the school bus stop provision would banish thousands of Georgia’s sex offenders -- many of whom, they say, pose little threat to society -- from their homes.

“I feel punished over and over and over again for something I did as a teenager,” said Whitaker, the main plaintiff in the suit, who has already served five years’ probation and now fears she will be forced to live apart from her husband.

Whitaker’s predicament, attorneys say, demonstrates that the bus stop restriction violates the Constitution’s ban on laws that are ex post facto, meaning after the fact.

“It is a fundamental concept of justice: You don’t add punishment to people after the fact,” said Lisa Kung, director of the law center. “Here we have many people who got five years’ probation -- that’s punishment. And suddenly -- wow -- 10 years later, they’re banished from Georgia.”

A huge number of Georgia’s sex offenders live within 1,000 feet of school bus stops. In DeKalb County in suburban Atlanta, all 490 offenders would have to move; about 85 miles south, all but three of Bibb County’s 30 sex offenders would have to move.

Already, some sex offenders have left Georgia. Eight have registered just across the state line in Russell County, Ala., since the law passed.

Whereas at least 15 states have introduced legislation that restricts where sex offenders may live, Georgia -- which already prohibits their living within 1,000 feet of schools, child-care centers and playgrounds -- is the first state to prohibit living near school bus stops.

But unlike many other states, Georgia does not distinguish between people convicted of violent sexual offenses such as rape and teenagers who had consensual sexual relations with minors.

Georgia does not make exceptions for those who already own or rent homes, and it does not offer hardship exemptions based on old age, illness or disability. According to the Southern Center for Human Rights, about 25 people on the registry are in nursing homes. Many are in wheelchairs, one is blind and another is 100 years old.

Yet supporters of the law -- which also imposes mandatory prison sentences of 25 years for rape and child molestation and requires sexual predators to be monitored by electronic tracking devices -- insist that the school bus stop restriction is necessary.

“Yes, it’s an inconvenience; some folks will have to move,” said Jerry Keen, state House majority leader, who sponsored the legislation. “But if you weigh that argument against the overall impact, which is the safety of children, most folks would agree this is a good thing.”

Keen said he decided to make it as difficult as possible for sex offenders to live in Georgia after 9-year-old Jessica Lunsford was raped and murdered last year in Florida. The suspect is a registered sex offender who was subsequently arrested in Augusta, Ga.

Although legislators could not figure how to craft the residency restrictions to exempt low-level offenders without creating an exception for everyone, he said, he remained confident that the law would stand.

“This is something that is taking root all over the country,” he said. “People are putting a premium on the safety of kids.”

Until now, legal efforts to challenge residency restrictions for sex offenders have been unsuccessful. In 2004, a federal judge ruled that Iowa’s law against living within 2,000 feet of schools and child-care centers was unconstitutional because it retroactively imposed sanctions, but that decision was reversed by the Iowa Court of Appeals, which ruled in the name of public safety.

Yet critics of Georgia’s new law say the bus stop provision is not likely to make children any safer. In fact, many worry that some sex offenders will stop registering.

“The level of desperation is amazing,” Kung said. “People are trying hard, but they literally have no place to go. Many people will just disappear off the grid.”

In Linn County, Iowa, the sheriff’s office used to know where 90% of the county’s sex offenders lived, but that number has dropped to less than 50%. “The law was supposed to create a completely safe environment,” Sheriff Donald Zeller said. “It isn’t working.”

In Georgia, Thomas E. Brown, sheriff of DeKalb County, held a news conference last month to complain that the law was “almost unenforceable”: His office does not have the resources to ensure that all 490 sex offenders move. If the bus stop provision comes into effect, DeKalb will take warrants out on anyone who does not comply but will not search for them unless they pose a threat to public safety.

But that, he said, is unlikely.

“The fortunate thing for me is there are no dangerous predators in DeKalb -- not one,” Brown said, explaining that most of the sex offenders there were men who had consensual sex with 14- or 15-year-olds when they were teenagers.

In fact, only 14 of Georgia’s sex offenders are classified as dangerous predators.

Although sexual abuse cases have declined in recent years -- the number of sexual abuse cases substantiated by child protection agencies dropped 40% from 1992 to 2000 -- legislators have introduced a raft of sex-offender laws. According to the National Conference of State Legislatures, about 80 sex-offender laws were introduced in 2004 and 150 in 2005.

Regina Thomas, a Democrat representing Savannah and the only senator to vote against the Georgia bill, said that several legislators shared her concerns about how sex offenders were classified and how the law would be enforced, but feared the political consequences of voting against the bill.

“Nobody -- Democrat or Republican -- wanted to be seen to be voting for child molesting,” she said.

Whitaker -- the woman who had sex with a 15-year-old when she was 17 -- is studying for an associate’s degree in criminal justice. She has faith that the law will generate enough debate about sex offenders for her to be able to remain in Georgia.

“People hear ‘sex offender,’ and they automatically think of a dirty old man prowling the streets,” she said. “They don’t think about people like me.”