ACLU, CPCS File Challenge to "BASIC Ordinance"

August 26, 2009 12:00 am

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Barnstable law threatens plaintiff, convicted of teenage sexual activity, with homelessness


BOSTON — The American Civil Liberties Union of Massachusetts and the Committee for Public Counsel Services (CPCS) have filed a lawsuit in Barnstable Superior Court challenging a Town of Barnstable ordinance limiting where sex offenders may live. The ordinance is so restrictive that that it leaves no housing available and will not only force the plaintiff in the suit to move out of the home he shares with members of his family — it will effectively banish him from the town and result in homelessness.

The harsh consequences of the local law for the plaintiff in the suit are the result of a juvenile case from California dating back eighteen years.

The plaintiff, then 16 years old, had sex with his 13-year-old girlfriend.

Although the record of the juvenile case was sealed and he has never been charged with another sex offense, Massachusetts classified him as a Level 2 sex offender solely on the basis of the nature of the California conviction.

The Town of Barnstable ordinance enacted in 2006 prohibits any Level 2 or Level 3 sex offender from taking up residence anywhere within 2,000 feet of a facility that has the principle purpose of providing services to children.

The plaintiff, who is identified as “Mark Moe,” has been living with his cousin since the beginning of the year. Unknown to Moe, his cousin’s home, where he now resides, is located within 2,000 feet of a home daycare provider which the Town of Barnstable has designated as a facility with the principal purpose of providing services to children.

Moe has been served with a citation for violating the town ordinance and could face a fine of $300 per day for every day that he remains in his cousin’s home. Moe is currently unemployed and, as a registered sex offender, found it difficult to find regular employment. He cannot afford to pay the fine for violation of the ordinance and is unable to find other housing.

“This case highlights the problems and illusory safety associated with laws that restrict where convicted sex offenders can live,” said John Reinstein, legal director of the ACLU of Massachusetts. “Laws such as this hamper efforts to monitor potentially dangerous offenders, because they can effectively force these individuals into homelessness by severely restricting where they can live.”

Sex offender residence restrictions such as the Barnstable ordinance have been widely criticized as ineffective and counterproductive. Professor Jill Levenson, who has conducted extensive studies of these restrictions, states in an affidavit supporting the plaintiff’s claims, “The sexual abuse of a child is an egregious act, and preventing the abuse of children is an important and worthy goal, but in the absence of empirical evidence demonstrating the effectiveness of residence restrictions in protecting children, preventing sexual violence, or reducing recidivism, it is my considered opinion that laws establishing residence restrictions on sex offenders impede rather than advance efforts toward this goal. This is because there are unintended consequences of these laws. Residence restrictions interfere with reintegration by diminishing housing availability and increasing the potential for transience and homelessness.

This, in turn, undermines the very purpose of the sex offender registry by increasing the number of offenders who fail to register, abscond, or become more difficult to track and monitor and by increasing, in some cases, the risk of recidivism.”

“Measures such as the Barnstable ordinance are unconstitutional and create a sense of safety that is illusory, but parents in particular should be troubled by the facts of this case,” said Carol Rose, executive director of the ACLU of Massachusetts. “Imagine that your teenage son or daughter were criminally prosecuted for having sex with another teenager two or three years younger. While many parents would not approve of this behavior, they would not want it to determine where their child could live and work for the rest of their lives.”

The case asserts that the local residency restriction violates the Home Rule Amendment to the Massachusetts constitution, which prohibits cities and towns from adopting measures which are inconsistent with state law. The claim in this case is that the ordinance is inconsistent with the Commonwealth’s comprehensive statutory scheme for the regulation, supervision, and treatment of sex offenders. The case also asserts that the ordinance is an ex post facto law and that, by limiting the plaintiff’s ability to live with members of his own family, deprives him of the right of private associate guaranteed by the constitution as an essential element of due process.

The plaintiff in the suit is represented by ACLU of Massachusetts attorney John Reinstein and CPCS attorneys Beth Eisenberg, Larni Levy and Pasqua Scibelli.

The Barnstable Superior Court will hold a hearing on a request for preliminary injunction on Tuesday, September 1, 2009, at 2pm.

For more information, download the complaint:

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