A panel of 11 federal appeals judges voted 8-3 to reject a constitutional challenge to a lifetime ban on a convicted pedophile entering recreational facilities of the city of Lafayette, Indiana. The police chief there imposed the ban unilaterally after learning that the man, identified in court papers as Joe Doe, was watching teenagers playing in a city park while under treatment for his pedophilia.
The July 30 ruling drew a sharp dissenting opinion from three judges, who argued that the plaintiff was being punished by the city for his status as a pedophile and his sexual thoughts, in violation of his rights to liberty and freedom of thought.
According to the majority opinion by Judge Kenneth F. Ripple and the dissent by Judge Ann C. Williams, Doe had been convicted of a variety of sexual offenses toward children between 1978 through 1991, none involving violence or physical injury, and was under a psychologist’s care as well as participating in a sexual addiction support group. He has not been charged with any actual sexual offenses since 1991.
However, Doe acknowledged that, while driving home from work one day in 2001, he followed an urge to drive to a city park and watch teenagers playing softball. When he realized he might break down and attempt a sexual interaction, he fled from the park and called his psychologist, who recommended talking through the incident with his support group.
An anonymous caller tipped off the police department about Doe being seen watching children play ball in the park. The police chief, after discussing the matter with other city officials, sent Doe a letter instructing him to refrain from entering any public park facilities, including ball fields, neighborhood parks, a zoo, and several swimming pools. The ban had no specified date of termination.
Doe sued the city, claiming that he was being “punished” for his thoughts, and that this violated his rights under the First and 14th Amendments of the Constitution. During his deposition, under questioning from city attorneys, Doe admitted that he had not tried to have sex with any of a group of four teens he was watching because he had concluded it would not be “realistic” to approach that large a group.
Federal Trial Judge Allen Sharp, in Hammond, Indiana, granted the city’s motion for summary judgment. A three-judge panel of the circuit court reversed in June 2003, in an opinion by Judge Williams that featured an angry dissent by Judge Ripple. The circuit court voted for re-argument before all the active judges of the court, producing the 8-3 vote affirming the trial court on July 30, with Ripple and Williams changing places as decision-writer and dissenter.
Ripple decisively rejected the contention that the city was “punishing” Doe for his “thought.” Instead, he saw this as an entirely reasonable action to take, in light of Doe’s past criminal record and professional testimony that pedophilia cannot be cured, just controlled, and that nobody could guarantee that a pedophile would not re-offend.
“The City has not banned him from having sexual fantasies about children,” wrote Ripple. “The inescapable reality is that Mr. Doe did not simply entertain thoughts; he brought himself to the brink of committing child molestation. He had sexual urges directed toward children, and he took dangerous steps toward gratifying his urges by going to a place where he was likely to find children in a vulnerable situation.”
Ripple saw Doe’s actions as a potentially harmful lack of control, signaling the need for an appropriate response by the city, even though the incident was characterized by Doe’s psychologist in a contrary way. The psychologist testified that the ball field incident showed that Doe had not given in to temptation, and that his seeking advice from her afterward reinforced his awareness of the need to control his actions. However, the psychologist conceded under cross-examination that no guarantee could be given that Doe would not molest a child if given the opportunity.
Although comments can be found in U.S. Supreme Court cases exalting the right of individuals to stroll freely about and generally not to have to account to the government for their wandering, Ripple found this case distinguishable from others in which the Supreme Court has exalted the right of individuals to stroll freely without government oversight because of the peculiar nature of the interests at stake—especially the state interest in protecting “innocent” youth.
In a passionate dissent, Williams argued that the facilities ban was indeed punishment, and that punishment cannot be inflicted, consistent with the Constitution, for thoughts unaccompanied by significant action towards fulfilling the criminal act. Calling upon a recent decision in which the Supreme Court struck down a federal statutory ban on the possession of “virtual” child pornography, Williams observed that the Court has been very consistent over the years in rejecting punishment for “thought crimes,” even when the thoughts involved would strike many as reprehensible and even dangerous.
More significantly, Williams saw this as an instance of punishment based on somebody’s status, something the Supreme Court rejected more than 40 years ago when it struck down a California law that made it a crime to be present in that state while addicted to illegal drugs. The Court held that it violates the Eighth Amendment’s ban on cruel and unusual punishment to impose a deprivation of liberty on somebody because of who they are, rather than what they have recently Williams compared the ban to a prosecution of a person with a criminal record of robbery, “simply because she or he stood in the parking lot of a bank and thought about robbing it.”
Doe’s only further appeal at this time would be to the U.S. Supreme Court. He is being represented by the American Civil Liberties Union of Indiana.