Sex Offender Residency Statutes and the Culture of Fear: The Case for More Meaningful Rational Basis Review of Fear-Driven Public Safety Laws

2006:
Introduction

Seventeen states and an increasing number of municipalties have passed laws prohibiting people convicted of sex offenses from residing near places where children congregate, such as schools, parks, day cares, and playgrounds.' These laws reflect the public's growing fear of sex offenders and outrage at the crimes they commit.'

But do sex offender residency statutes actually protect children, or do they undermine community safety? Are these laws common sense, appropriate responses to a serious threat posed to the nation's children, or are they fear-driven reactions to high-profile media coverage of child abduction and sexual assault cases? Moreover, suppose these restrictions are not based on any evidence that they are effective in preventing or reducing child sexual abuse, but are instead hot-blooded legislative responses to public outcry generated from extensive media coverage of child abduction cases. Under such circumstances, should a court, faced with an equal protection challenge to the law, apply a toothless, highly deferential rational basis analysis? Or, should the court conduct a more meaningful review—with bite?

This Article argues that sex offender residency restrictions are driven primarily by fear and dislike of sex offenders, not reasoned analysis of what is necessary to protect children. Accordingly, courts, when considering equal protection challenges to such laws, should eschew highly deferential rational basis review fora more rigorous standard.

Part I analyzes the media's role in shaping and distorting public perception of crime and safety issues in the United States.

Part II discusses the development and proliferation of sex offender residency restrictions as a response to high-profile media coverage of child abduction cases. Part II also examines whether residency restrictions are effective in reducing child sexual abuse and concludes that these laws are likely ineffective and potentially counterproductive.

Part III argues that courts, applying rational basis review, should more closely scrutinize sex offender residency restrictions because such laws are motivated primarily by fear and dislike of sex offenders rather than reasoned analysis of what is necessary and appropriate to protect children from sexual abuse. Part III discusses United States Department of Agriculture v. Moreno,' City of Cleburne v. Cleburne Living Center, 7 and Romer v. Evans'—three cases in which the United States Supreme Court held that classifications driven by fear and dislike of politically unpopular groups are irrational under the rational basis standard. Although Moreno, Cleburne, and Romer provide a conceptual basis for closer scrutiny of fear and prejudice-based classifications, those cases, in and of themselves, do not provide a sufficient framework for analyzing the type of statute at issue here. Unlike the classifications at issue in those cases, which the Court found to be solely motivated by fear or a desire to harm a politically unpopular group, sex offender residency statutes are ostensibly motivated by a legitimate and important governmental purpose: the protection of children from sexual abuse. This public safety rationale, however, should not shield sex offender residency statutes from meaningful scrutiny of whether the means chosen by the legislature—prohibiting sex offenders from living within a certain distance of places where children are likely to congregate—further the stated goal of protecting children from sexual abuse. Part III argues that because sex offender residency statutes are largely the result of media-generated fear and dislike of sex offenders, courts should look behind the stated public-safety goals to examine more closely the question of whether these statutes actually protect children.

Part IV proposes a framework for courts to use in determining whether a law, with an ostensibly permissible goal, is nonetheless impermissibly fear-based and therefore irrational.

Part V applies this new framework from Part IV to a hypothetical equal protection challenge to Ohio's sex offender residency law.

..The Rest of the Paper.. by David A. Singleton, Sex Offender Residency Statutes and the Culture of Fear: The Case for More Meaningful Rational Basis Review of Fear-Driven Public Safety Laws, 3 U. ST. THOMAS L.J. 600, 610 (2006).