In recent weeks, questions have arisen regarding what a
municipality may do when a convicted sex offender chooses to reside
within the municipal border. These questions are legitimate, and it
is worth our time to fully understand what both the municipality
and its citizens can and should do in the face of real and
perceived threats to the safety and welfare of our children.
State law provides that a municipality may prevent sex offenders
from residing in certain areas. The General Assembly first enacted
sex offender residency restrictions effective July 31, 2003. At
that time, the restrictions allowed municipalities to prohibit sex
offenders from residing within 1,000 feet of any "school
premises." In July 2007, the General Assembly expanded the
scope of the law to allow a municipality to prevent sex offenders
from residing within 1,000 feet of a preschool or child day-care
center. Therefore, as a general matter under current law, the
municipality may initiate legal proceedings to prevent a sex
offender from residing within 1,000 feet of any school, preschool,
or child day-care center.
As is often the case in legal matters, application of the general
rule depends on the facts of a particular case. One issue that has
received considerable attention from Ohio courts is whether the
residency restrictions can be applied to offenders that committed
their crimes before the date the statute went into effect. Ohio
courts, including the Supreme Court of Ohio, have held that the
residency restrictions do not apply to sex offenders that committed
their offenses before the statute's effective date, which was
July 31, 2003 for the school restriction and July 1, 2007 for the
preschool and day-care restrictions. In the 2008 Ohio Supreme Court
case Hyle v. Porter, the sex offender at issue was
convicted of sex offenses in 1995 and 1999. Both offenses occurred
several years before the General Assembly imposed residency
restrictions on sex offenders. When local authorities sought to
permanently prevent the offender from occupying his residence,
which was within 1,000 feet of a school, the offender argued that
the statute could not be applied to him. The Supreme Court of Ohio
agreed and held that General Assembly failed to write the statute
in a way that would make it apply retroactively. Therefore, the
court held that the statute did not apply to an individual who
bought his home and committed his offense before the effective date
of the statute. In its opinion, the court put the burden on the
General Assembly to include "strong and unmistakable
declarations of retroactivity" within a statute if it wants
the statute to apply retroactively.
Since the Supreme Court's decision in Hyle v. Porter,
other Ohio courts have concluded that the residency restriction
cannot be applied retroactively, even when the offender did not
reside at the location in question before July 31, 2003. For
example, in the 2008 case Vandervoot v. Larson, the Fifth
District Court of Appeals held that the statute cannot be applied
retroactively even if an offender did not purchase or own his
residence before the statute's effective date. In the
Vandervoot case, an offender was convicted of a sex
offense in 1994. In December 2004, after the residency restriction
went into effect, the offender moved within 1,000 feet of a school.
The Fifth District Court of Appeals held that the city of Lancaster
could not use the residency-restriction statute to force the
offender to move. Other Ohio courts have reached the same
conclusion.
Although state lawmakers are trying to address these recent court
decisions by amending the statute, amendments have not yet been
enacted. Thus, at this time, the municipality's power to force
sex offenders to move their residences is limited. The municipality
may not prevent a convicted sex offender from residing within
statutorily restricted areas if the offense was committed before
July 31, 2003. Moreover, even if the law is amended, it could be
susceptible to further attack on constitutional grounds.
The status of current law understandably may elicit frustration
and, perhaps, anger. In this respect, we certainly applaud the
efforts of state and local lawmakers as they work toward the
implementation of appropriate policies that address real threats to
the safety of our children. But however appropriate our legislative
goals may be, we must remain aware that no law will ever be capable
of guaranteeing the safety of our children. The real work of
protecting our most valuable resource always has been done each day
by parents, caregivers, and friends.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.