Monday, July 14, 2008

A Nearly 30 Year Woman Evicted From Home Because She is Labeled A Sex Offender

The Atlanta Journal-Constitution writes:
Wendy Whitaker's name may be on Georgia's sex offender registry, but her offense suggests she is no predator.

At age 17, while a high school sophomore, Whitaker had oral sex with a 15-year-old male classmate. In 1997, she pleaded guilty to sodomy and got five years' probation. Whitaker, 28, has moved twice because of the sex offender law's restrictions that say an offender cannot live within 1,000 feet of places where children congregate. Whitaker was recently told by a sheriff she must move again because her home is within 1,000 feet of a church.

"It's a recurrent nightmare," Whitaker said Friday. "It's like a roller coaster. One minute, I'm OK. The next, I'm not. This time, I really thought everything was going to be all right."
Wendy Whitaker is a sex offender under Georgia's sex offender law because at age 17 she engaged in oral sex with a 15 year old boy and had the bad luck to get caught. Right now, I can all but guarantee you, there are teenagers in Georgia having sex. I am willing to be large, very large, sums of money on the notion. It does not make them sex offenders and certainly doesn't make them sex offenders for life.

Whitaker has been evicted from her home because 11 years ago she had sex as a teenager.

Such is the problem of bad legislation. The sex offender law was no doubt intended to prevent actual predatory sex offenders from being near children. But, as in Whitaker's case, the problem is exacerbated because the Georgia sex offender law labels anyone convicted of sex based offense as a sex offender, even if the sex was consensual between two teenagers.

I noted a similar story a couple of years ago, which may have been Whitaker's but the Post story doesn't say. I noted back then
So if two high school kids are caught having sex and charged with a sex crime, under this law not only are they not allowed to live within 1,000 feet of a school, playground, chruch or bus stop, apparently they would also be barred from attending their own high school.
How is that for an absurd result!!!

Whitaker is now suing alleging that the residency restrictions are unconstitutional and that the forced eviction is tantamount to a "taking."

I think the takings aspect is an interesting twist on the case. The sex offender residency restictions prohibits sex offenders from living within 1,000 feet of where children congregate. But Whitaker and her husband own their home, bought in January 2006. The Georgia Supreme Court previously ruled that the sex offender residency restrictions amounted to a taking under the constitution if the sex offender owned a home within the exclusionary boundary. So the Georgia legislature passed a law that said any home bought prior to July 2006 wouldn't apply. The tickle is that Whitaker's name did not appear on the deed to the couple's home until 2007, triggering the local sheriff to give notice that she vacate the house within 48 hours. I would imagine that the reason why Whitaker's name wasn't on the deed was to prevent the triggering of the residency rules.

So the question becomes now, after July 1, 2006, if a sex offender buys a house that is outside the exclusionary zone and then a church, a school or a school bus stop is built or designated within 1,000 feet of the home, is it a taking? I would argue yes, although less so for the church since that is usually a private entity buying the land.

But this whole legal think leaves unaddressed, is Wendy Whitaker really a sex offender? Simply put, based on her past, no--she isn't. I think clearly there needs to be a provision in place where people can petition to be let off the list, particularly in cases like Wendy Whitaker, what really is her crime? Consensual oral sex as a teenager? She was on probation until she was 22, five years after her crime. Six years later, she is still paying for it? Is this really justice?

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