The Drive to Create Pedophile-Free Zones: Why It Won't Work - And What Will Work

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Aug. 25, 2005

Towns in Pennsylvania, New Jersey, and elsewhere are currently considering whether to create what I will call "Pedophile-free Zones." The usual gambit is to prevent convicted sex offenders from living within 1,000 or even 2,500 feet of a school, playground, or other area where children might be.

The lawmakers' motives are pure, but this approach will not work. Indeed, it would create the dangerous illusion of safety, while leaving our children right where they are now - at an unacceptable level of risk. Fortunately, however, there are other, far more effective means of protecting our children.

The Approach Cities Have Used for Adult Video Stores and Bookstores Won't Work Here

Municipal and city attorneys are familiar with the "zone" approach for stores that sell adult videos and books, as well as other adult businesses.

When such stores started to proliferate in the Sixties, communities tried to move them beyond their city limits altogether. That did not work. The Supreme Court held that such speech, though not highly valuable, is still protected by the First Amendment, so banning it altogether is unconstitutional.

"Time, place, and manner" restrictions, however, can often pass constitutional muster. So in the end, cities did manage to succeed in pushing these stores to their borders, or into specific zones within the city, by forbidding them to locate within 1,000 feet of any school, church, or playground. Therein lies the model for the current Pedophile-free Zone proposals.

But as a model, this one is wrongheaded. While one can sympathize with the desire to create zones of safety for our children, the problem of child abuse will not be solved through zoning. Even if a pervert cannot live within 2,500 feet of a school, he will doubtless be able (either legally, or due to the limits of enforcement) to use the sidewalks and streets near schools and playgrounds. Adult bookstores are not mobile; people are.

Moreover, it would be na´ve to think that all the dangerous pedophiles that exist, already appear on sex offender lists. There are many pedophiles (including incest, teacher, and clergy perpetrators) who were able to wait out the expiration of overly short statutes of limitations, and, therefore, do not appear on the sex offender registry lists.

Finally, we also need to remember that pedophiles who are not relatives of the children they victimize, tend to succeed by being nice guys who have the ability to ingratiate themselves with families; they prey on children wherever they can find them, not just at school or at the playground. And no zoning program will ever be able to address that risk.

Only parents can ensure that their children do not spend time alone with adults who cannot be trusted - no matter how kind and helpful that person may seem. The adult who is traveling alone with an unrelated child should be investigated, not thanked.

The Approaches That Will Work: How to Attack Our Problem with Pedophiles

"Pedophile-free zones," then, are not likely to go far to help solve the terrible problem they are meant to address. Yet, we should not waste this moment in history when children's safety is rightly at the forefront of public policy concerns. Sadly, that has not always been true, and because children don't vote (as every children's advocate will tell you), we cannot be certain this issue will grab headlines in the future.

There are ten legal reforms that need to be put into place if we are to ensure that children will be safer tomorrow than they are today, and they have nothing to do with zoning. They are as follows:

1. The law should require that professionals with access to children turn abusers in. We must make all professionals (doctors, nurses, psychiatrists, teachers, and clergy) strictly liable - that is, subject to liability regardless of proof of fault -- if they fail to report suspected child abuse.

While the rest of us were ignorant of the scope of childhood sexual abuse within the Catholic Church, the Jehovah's Witnesses, and other congregations, the religious leaders were lobbying to be exempt from reporting child abuse. Now that we know the facts, it is irresponsible for any state to exempt clergy from these reporting requirements: They are often the only ones who know about child abuse, and, it turns out, are utterly ineffective in stopping it; indeed, they may end up acting to, in effect, shield the perpetrator, allowing him to strike again and again. It cannot be said often enough: Self-policing does not work.

The problem with the reporting statutes has been inadequate enforcement, but the tools are there if legislators care enough about children to enforce reporting. State legislators ought to adopt a stair-step approach: First, any professional who knew about child abuse and failed to report it, at any time, must pay a mandatory fine of $500 and do 300 hours of community service. Two failures to report child abuse ought to require a $5,000 fine, and 1000 hours of community service. Three failures, and those professionals who are licensed by the state lose their licenses, those who are employed by government (such as public school teachers) lose their jobs, and all serve a mandatory minimum 30 days in jail.

2. All states must abolish the statute of limitations on childhood sexual abuse. As I have discussed in a previous column, this is a crucial measure that must be taken so that these predators can never rest assured that they have gotten off scot-free.

3. All states ought to create incentives for existing victims to out their perpetrators, who are in all likelihood still abusing children. On average, a pedophile will victimize hundreds of children. States should retroactively abolish the statute of limitations on childhood sexual abuse - so perpetrators cannot use the passage of time as an excuse to avoid accountability.

I am suggesting a permanently opened window. Relatively short "windows" of retroactivity (lasting one year), in which suits can be brought even though the statute of limitations has expired, have been created for child abuse victims in states like California and Illinois, because groups like the Catholic Conference in the states often lobby against such liability. There should, however, be permanent retroactivity - in other words, abolition -- of the statutes of limitations on childhood sexual abuse, in order to stop already-active predators from striking again. (The Supreme Court's decision in Stogner v. California makes it impossible to create retroactivity in the criminal context, unfortunately, but in the civil context, it is clearly permissible.)

This would create a class of child abuse victims that has been given the power to sue the perpetrators, and those who aided the perpetrators - and to educate the rest of us on the secret pedophiles. The result would be that perpetrators who abused in the past can be stopped from abusing now or in the future.

4. All states should raise the age of marriage and statutory rape to at least 16, and educate our young people on the law. Recently, a girl in Nebraska was impregnated by a much older man. That is a violation of the statutory rape laws. Yet the family permitted the man to take the child across state lines to Kansas, where he legally married her. He should be in jail, not married, and Nebraska is right to prosecute him.

5. States should enact mandatory life sentences for childhood sexual abuse involving rape or sodomy. The same sentence should be mandated for the third conviction on lesser childhood sexual abuse crimes.

6. States, and the federal government, should take away tax-exempt status from nonprofits that fail to report abuse and then hide it. They should also take away corporate tax advantages enjoyed by for-profit corporations that do the same thing.

7. The federal government should create an Office of Child Safety within the Department of Justice. The primary job of that office should be to prosecute Mann Act violations - that is, crimes defined by the movement of children across state lines for sex -- and to investigate the cover up of child abuse by organizations. The Mann Act is scandalously underenforced with respect to clergy crossing state lines for sex (they often, for instance, take their victims to "vacation" homes or on "special" trips; polygamous organizations cross state lines to exchange young girls, often blood relatives, as wives).

The Office should also oversee a national registry of convicted sex offenders. And it should maintain a public database of names of those perpetrators found liable in tort for childhood sexual abuse.

Why haven't steps like these already been taken? The answer may be, in part, that former Attorney General John Ashcroft was more interesting in aiding religious entities - for the purpose of which he created a new position within the Department - than aiding child victims. (The Office of Child Safety ought to be clearly separated from the office of whoever holds this new position, due to a clear conflict of interest.)

The Department has been like the three see-no-evil, hear-no-evil, and speak-no-evil monkeys - even in the face of the revelations that have been forthcoming since 2002 about the extent of clergy abuse in a number of religious organizations. It is now clear that there are thousands of children who have been abused in the United States by clergy, and whose religious organizations covered up their abuse, and the DOJ has treated the problem with dead silence.

8. Congress should pass spending legislation that stops Medicare and welfare funding to states unless they enact serious reforms (see above) to stop and deter childhood sexual abuse. The cost to the health care and welfare systems of childhood sexual abuse is staggering - its toll is taken not only in physical harms, but also in addictions, mental illness, and broken families. All taxpayers are paying those costs, and it is unconscionable that states continue to receive such funds, if they are not doing everything possible to deter the harm from occurring in the first place.

9. Every citizen needs to take it upon himself or herself to protect the children they believe are at risk. Police departments can make this easier by instituting and publicizing nontraceable child abuse hotlines for people to report suspected child abuse to authorities. In my recent book God vs. the Gavel: Religion and the Rule of Law, I tell Jennifer Chapin's horrific story of suffering years of ritualistic and sadistic abuse by a priest. Her parents did not suspect, but a neighbor did. If that neighbor had had the option of calling an anonymous child abuse tip line, Jennifer might still have been a victim, but she might not have been a victim for years. Such a tip line would also be a means for an abused child to report their own abuse without fear of having the report traced back to them, or for their friends and family to do the same. Even a professional afraid of repercussions within his or her organization could use the tip line, as well.

10. In the next election cycle, candidates need to be made to understand that they better have a position on stopping, and deterring, childhood sexual abuse. From prosecutors, to elected judges, to state and federal representatives, they all need to be grilled on what they will do to make this country a safer place for children and why their proposals will be an improvement on the past. Both political parties must include in their platforms a plank for the children. And any official running for political office who is soft on the protection of children, should be subject to journalistic investigation to figure out which lobbying organization got to them, so that we can all learn who are the true enemies of children's safety.

Pedophiles do not have organized lobbyists, but religious organizations and insurance companies do. Both have been effective bulwarks against reforms that will protect children. They need to be forced to account for their subjugation of children's interests to their interest in money and and preserving their public image.

Make no mistake about it -- there are ways to protect children, and if elected officials' feet are held to the political fire, we will create a country that is better for our children. Unfortunately, zoning them out of our cities simply will not work.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Hamilton02@aol.com. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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