Halloween rules only apply to sex offenders convicted after 2008

Wednesday, October 27, 2010

Not all registered sex offenders in Cape Girardeau County will be prohibited from dishing out Halloween candy to trick-or-treaters Sunday because of a Missouri Supreme Court decision in January that sided with an offender convicted of a sex crime about 20 years ago.

The Supreme Court ruled 4-3 that a 2008 law requiring sex offenders to avoid any Halloween contact with children, leave their outside lights off and post a sign saying "No candy or treats at this residence" was unconstitutional. In its ruling, the court stated that under Missouri's ex post facto provision the restrictions on sex offenders on Halloween may only apply to defendants convicted after Aug. 28, 2008.

"It's very limited in applicability in our county," said Morley Swingle, Cape Girardeau County prosecuting attorney.

"We'd have to look at all of our offenders and see which convictions came after 2008 and even then there's some question on whether all four of the provisions of the Halloween law can be enforced."

Of the 145 registered sex offenders in Cape Girardeau County, less than 10 were convicted after the 2008 law was enacted, according to Lt. David James of the Cape Girardeau County Sheriff's Office.

Swingle said it remains questionable that two of the four provisions regarding sex offender conduct on Halloween are enforceable because active litigation involving Cape Girardeau, Pike and St. Louis counties. Just before Halloween two years ago, the American Civil Liberties Union of Eastern Missouri filed a lawsuit against the three counties, and after hearing arguments in the case U.S. District Judge Carol Jackson moved for a preliminary injunction, preventing agencies in the counties from enforcing parts of the Halloween restrictions statute.

According to Swingle, the judge found provision one -- avoid all Halloween contact with children -- and provision two, which orders offenders to say inside their home from 5 to 10:30 p.m. on Halloween unless required to be elsewhere for "just cause," too vague.

Swingle said Jackson criticized the provision because it didn't define the term clearly.

"It's about the language," he said. "It doesn't really describe what just cause is."

Because the U.S. Court of Appeals for the Eighth Circuit reversed Jackson's decision before Halloween two years ago, Swingle said if he had to give advice to area law enforcement it would to limit any enforcement to offenders convicted after Aug. 28, 2008.

"I don't think the number's even big enough to mess with," he said. "Let's not mess with it this year since it's the subject of active litigation right now. There's no sense in trying to enforce it until an answer's given in black and white."

Despite what seems like continuous changes in the law, officers from county law enforcement agencies say they're still keeping close tabs on sex offenders living in their area.

"We know who we've got; we keep pretty good tabs on them," said Jackson Police Department Lt. Rodney Barnes. "There are a lot of legal decisions and changes in the sex offender registry but we stay on top of it the best we can. Our main concern is just the safety of the children."

Cape Girardeau Police Department Sgt. Jason Selzer said changes in restrictions don't change how their crew approaches the holiday. A few extra officers are scheduled to be on duty, although they don't anticipate any problems with sex offenders violating the law.

"We're not going to go door-to-door and check on all registered sex offenders in the city limits," Selzer said. "We'll take it on a case-by-case basis. If there was some other mitigating circumstance where we saw someone was in danger, that went beyond handing out candy, we would of course act immediately."

For a complete list of sex offenders in Cape Girardeau County and up-to-date map of where they live, visit www.capecountysheriff.org/index.htm.

ehevern@semissourian.com

388-3635

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