GA- Woman sues over ongoing sanctions for sex as a teen

7-14-2008 Georgia:

Consensual activity by a student shouldn't force her to move from home, plaintiff says.

Wendy Whitaker's name may be on Georgia's sex offender registry, but her offense suggests she is no predator.

At age 17, while a high school sophomore, Whitaker had oral sex with a 15-year-old male classmate. In 1997, she pleaded guilty to sodomy and got five years' probation. Whitaker, 28, has moved twice because of the sex offender law's restrictions that say an offender cannot live within 1,000 feet of places where children congregate. Whitaker was recently told by a sheriff she must move again because her home is within 1,000 feet of a church.

"It's a recurrent nightmare," Whitaker said Friday. "It's like a roller coaster. One minute, I'm OK. The next, I'm not. This time, I really thought everything was going to be all right."

Whitaker is the lead plaintiff in a federal lawsuit filed in Atlanta that seeks to have the residency restrictions found unconstitutional. Whitaker and her husband, Michael, purchased their home in Harlem in January 2006, but her name was not put on the deed until 2007.

This is a potential problem under S.B. 1, the sex offender law passed last session to address a decision by the Georgia Supreme Court. In November, the court struck down residency restrictions that applied to homeowners, saying that making them have to abandon their homes was an "illegal taking."

S.B. 1 maintains the residency rules but says they cannot be enforced against offenders who bought homes before July 1, 2006.

Last week, Columbia County Sheriff Clay Whittle, after finding Whitaker's name was placed on the deed in 2007, ordered her to move within 48 hours.

Whitaker said Friday she has had ownership rights to the home, even if her name was not on the deed. "We've been married eight years, and everything we have we have together," she said.

Whitaker's lawyers asked Whittle to not enforce the residency restrictions against the woman while the suit is pending. The sheriff agreed. The matter is now pending before U.S. District Court Judge Clarence Cooper, who is overseeing the federal case.

But on Thursday, the state Attorney General's Office filed a motion stating that if Whitaker actually has a property interest in the home, she should seek relief from being evicted in the state courts, not the federal court.

"Assuming there is actual enforcement of an existing provision of the sex offender statute, [its] purpose ... is to protect the most innocent of victims, Georgia's children," the motion says. "There is indisputable evidence that convicted sex offenders have a propensity to re-offend."

Whitaker's lawyer, Sarah Geraghty, said the state should let the matter rest until the federal suit is over.

"Wendy Whitaker is not now and has never been a threat to anyone," she said. "The state of Georgia has better things to do than to evict a woman from her lawfully purchased home because she had sex as a teenager."

Augusta lawyer David Hudson, who represents Whittle, said the sheriff wants direction from the courts. If Cooper denies Whitaker's request, the sheriff "will enforce the law."

As for Whitaker's case, Hudson added, "My personal opinion is it seems to be costing the state of Georgia a lot of time and effort because of a law that reaches out to place these onerous burdens on offenders who are not predators." ..News Source.. by Bill Rankin, The Atlanta Journal-Constitution