Judge overturns part of state sex offender law

12-17-2009 North Carolina:

Pittsboro, N.C. — A judge in Chatham County ruled Thursday that part of the state law restricting the activities of registered sex offenders is to too vague to be enforced, and he declared it unconstitutional.

Superior Court Judge Allen Baddour also dismissed criminal charges against two men who had been indicted under the law because they were around children while attending church.

State lawmakers expanded restrictions on sex offenders last year by banning them from being within 300 feet of any place intended for the use, care or supervision of children and from "any place where minors gather for regularly scheduled educational, recreational or social programs."

James Nichols and Frank DeMaio were indicted in May on charges of violating the law by attending Moncure Baptist Church, which has a nursery and regular programs for children.

Both men are registered sex offenders. Nichols was convicted twice of indecent liberties with a teen girl and most recently of attempted second-degree rape in 2003. DeMaio was convicted twice of taking indecent liberties with children.

They challenged the state law, saying it was too broad and denied them their right to attend the church of their choice.

Chatham County authorities maintained that the men could get private counseling from ministers or attend a church that doesn't have a Sunday school, nursery or youth programs.

Baddour ruled that lawmakers could have used less drastic means to keep sex offenders away from children, noting they carved out exceptions to allow sex offenders to go on school property to vote or to pick up their own children from school.

"The state has not closely drawn the statute to avoid unnecessary abridgment of associational freedoms in achieving its objectives," he wrote in his 16-page ruling. "Additionally, there are a host of protected religious activities abridged by this statute which do not serve the compelling governmental interest."

Thirty-six states establish zones where sex offenders cannot live or visit. Some states provide exceptions for churches, but many do not.

Baddour let stand the portion of the law that prohibits sex offenders from "the premises of any place intended primarily for the use, care, or supervision of minors," such as schools, children's museums, day care centers and playgrounds. ..Source.. WRAL.com



Sex offender ban too vague

PITTSBORO -- A Superior Court judge has ruled a year-old state law unconstitutional because it prevents certain registered sex offenders from going to church.

Judge Allen Baddour acknowledged the state's compelling interest in protecting children who might also be attending a church, but he said "there are less drastic means for achieving the same purpose."

Katy Parker, legal director for the ACLU of North Carolina, celebrated the ruling, saying her agency had heard from more than 50 registered sex offenders or their pastors asking how they could comply with the law.

"I'm just pleased for these individuals who are trying to turn their life around, and part of the way they're doing that is to go to church," Parker said. She had filed a brief in support of James Nichols and Frankie Demaio, two registered sex offenders who had challenged the law in Chatham County.

Baddour said the law needs to require that a defendant have intent to be in the presence of minors to pass constitutional muster. It can't simply ban an offender from being in the vicinity of a Sunday school classroom, for example.

"There are a host of protected religious activities abridged by this statute," the judge wrote in Thursday's ruling.

State Rep. Julia Howard, R-Davie, a sponsor of the legislation, said adding "intent" might complicate matters. "The word intent is the most precarious word in the world," she said. "Who knows what my intent is? Anytime you see 'knowingly' or 'intent,' there's something mysterious there."

A bill to revise the law has already passed the state House and has been assigned to the Senate judiciary committee.

Other parts of the existing law remain in force even though Baddour declared some of it unconstitutional, Howard noted. It still prohibits violent sex offenders and offenders whose victims were under age 16 from visiting schools, playgrounds and other child-focused facilities.

Rep. Tim Moore, R-Cleveland, another sponsor and a lawyer, said the General Assembly is unlikely to revise the law unless the state Court of Appeals or the Supreme Court concurs with Baddour's ruling. Kayley Taber, the managing assistant district attorney for Chatham County, has already filed a notice of appeal in the case.

"A trial court judge in Chatham County cannot dictate what a trial court judge in Cleveland County or Gaston County does. They are of equal authority," Moore said.

What the trouble is

Baddour said the law is unconstitutionally vague because it doesn't specify whether children actually have to be present for an offender to be in violation.

"This law was so vague that nobody knew what it meant," said Parker. "This was a tough one, and [Baddour] made the right decision on the law."

The law also prohibits certain sex offenders from being within 300 feet of a child-care area that's part of a larger facility - a church or shopping mall, for example - without specifying whether that 300-foot radius ends at the borders of the larger facility. A sex offender might transgress the statute, Baddour wrote, by driving on an interstate highway that happens to pass too close to a shopping mall.

"It is therefore unreasonable to expect [the] defendants, or the average registered sex offender, or the average law enforcement officer, or the average citizen, to predict what kind of activity is unlawful," the judge wrote.

The proposed revision would drop the 300-foot radius and simply ban offenders from areas where children are regularly supervised.

Baddour's ruling comes after Nichols and Demaio were charged with a crime for being registered sex offenders on the premises of the Moncure Baptist Church. Nichols had told authorities that Demaio had manhandled a teenage girl in the church parking lot. Upon investigation, the Chatham County Sheriff's Office charged both men for being on the church grounds and Nichols for staying with another church member who also hosted teenage girls at her home.

Baddour dismissed the church-related charges, but Nichols' charge of providing child care in his home remains unresolved. It is scheduled for a hearing Jan. 11.

..Source.. by JESSE JAMES DECONTO - Staff Writer