Sex offender probation again. It doesn’t stop bothering me and it shouldn’t stop bothering you either.
One of the standard conditions of sex offender probation is the requirement that the probationer not go within 1-2,000 feet of a park, school, playground, library, etc (the so-called “residency restrictions“).
Connecticut does not have statewide residency restrictions and only three towns have enacted ordinances with penalties consisting of only fines.
Instead, in CT, you will see a standard condition of probation for sex offenders that is essentially a residency and work restriction. However, it is not worded quite as strictly as the residency restrictions and thus, in my opinion, is rather vague.
The standard condition reads something like this: “Probationer shall not go to any park, playground, school, [etc..] or any other place that is regularly frequented by minors under the age of sixteen.”
It’s that last bit that is especially problematic, because, in essence, any place could be a place frequented by minors under the age of sixteen. Take the movie theater, for instance.
The problem arises with actually proving a violation of the condition and whether a movie theater is a place that is regularly frequented by minors under the age of sixteen.
It seems to me that “frequently” the State proceeds to VOP hearings with the assumption that a movie theater is a place regularly frequented by minors and this assumption is rarely, if ever, effectively challenged by the defendant.
Several questions immediately spring to mind: What is regularly and whose regularly is it? Does it mean that the majority of patrons at a particular location are teens? Or do a particular set of teens (say the teens in that particular town) regularly go there? And what is “regularly”? 4 days a week? 51% of the patrons?
In addition, how does one really know that the teens who “frequent” that place are under the age of sixteen? No movie theater I know of checks ID and keeps a record of the age of each patron. No movie theater compiles these statistics. So how does one really know?
As anyone who has been outside in the last 15 years can attest (at least anecdotally), a 15 year old girl doesn’t look 15 anymore and there may be scientific evidence to back this up. There are even courses being taught about this general idea. So a girl that one may assume is 19 is actually 15. Indeed, some of our clients wouldn’t be in the messes they’re in if there was a sure-fire way of telling a girl’s age just by looking at her.
Keeping on with the movie theater example, does it matter if a majority of the patrons are adults, but a majority of those present are minors? Movie theaters are well known to be hang-outs for teens, but do they count?
Further, what’s the timeframe? Is it historical or within the last year or month or week or simply on the day that the defendant decided to go watch a movie?
These conditions are so vague, that I think a successful argument can be made that they do not provide adequate notice to a probationer that a non-enumerated place such as a movie theater is off-limits.
Shouldn’t the burden be on the State to actually prove that the movie theater is indeed a place which minors under the age of sixteen regularly frequent? And I mean prove by some sort of scientific evidence, not the eyeballing of an employee, not matter how long the employee has worked there.
In my opinion, such prosecutions must be zealously challenged and defended. Has anyone tried anything like this? Has anyone had any success? See any problems with my theories? How do you defend against these VOP hearings?