Small Texas Cities Face Challenge over Restrictions on Sex Offenders

The dirty old man in the wrinkled raincoat lurks behind a tree with a bag of candy in a neighborhood just like any other neighborhood. Seconds, minutes, hours have passed on a day like any other school day and still he stands and waits, hungrily licking his lips when the school bell rings and children rush outside.

The FBI once distributed posters of the dirty old man in the 1950s and ‘60s with a caption that read, “For your protection, remember to turn down gifts from strangers and refuse rides from strangers.” He became the poster child of a child molester, a faceless monster who’s known by many names, including “diaper sniper” in prison and “Holy Father” in Boston. But the agency now calls him a myth, a byproduct of a religious era when people needed a clear distinction between good and evil, a monster like the dirty old man instead of Uncle Larry’s drinking buddy with the porn star mustache, according to a 2010 Department of Justice report by Kenneth V. Lanning, a former FBI special agent who specializes in behavioral and criminal aspects of deviant sexual behavior.

“Although no longer the primary focus of sexual-victimization children's literature and training, ‘stranger danger' still maintains a disproportionate concern for society and is regularly perpetuated in the media. The fact is child molesters can look like anyone else and even be someone we know and like,” Lanning wrote.

This disproportionate concern led to the passage of state sex offender registry programs in the '90s, a national sex offender registry in 2006 and, more recently, passage of residency restriction ordinances in more than 70 cities and towns across Texas. It’s a move that many town officials claim keeps sex offenders out of places where children frequent. Richard Gladden, a Denton-based attorney who’s currently suing 14 of those towns over their residency restriction ordinances, points out that towns are passing laws similar to the “old sundown laws,” which required blacks to leave town by sundown. “It’s not because they want their children safer,” he says. “It’s because they don’t like sex offenders. They have an image of a sex offender being a stranger, someone who is mentally ill and unable to control their sexual conduct as if they're diseased or something.” 

The sex offender system of identification, he says, is a juggernaut on a collision course with a brick wall as the definition of a sex offender gets broader and broader, adding more and more names to a list already containing 85,000 people in Texas alone. For example, Gladden points out that under Texas law, if a person like the dirty old man in a wrinkled rain coat is caught peeing behind a tree in public, he’s charged with exposing his genitals recklessly (or indecent exposure). But if that dirty old bastard who had way too much to drink is caught pissing on a tree again (and convicted of it), he will have to register as a sex offender. “There isn’t anything sexual about peeing on a tree,” says Gladden, who’s representing Texas Voices for Reason and Justice, a sex offender advocacy group, in the lawsuit against general-law cities with sex offender residency restriction ordinances.

The tree pisser, he says, is definitely not a threat to children, and yet he’s being included among other sex offenders as many city leaders enact “blanket policy” that condemns many people whose convicted sex offenses have nothing to do with being a predator but everything to do with being a dumbass who’s experiencing brain farts when, in one case, he moons a group of people with children among them or, in another, meets a woman in an 18-and-up bar, and dives into a river of intoxication that leads to her panties only to find out later that she’s underage when police arrive.

“I think generally that if somebody breaks into your house, your mind flashes to the worst kind of person,” Gladden says. “It creates fear of that faceless person. The same thing is going on with the label of ‘sex offender.’”

This banishment through residency restriction ordinances is also something that many Texas towns as general-law cities don’t have state constitutional authority to enact, according to a 2007 by former Attorney General Greg Abbott. Gladden discovered dozens of general-law towns — smaller towns which, unlike home rule cities, don't have their own charters — that ignored Abbott’s opinion and enacted residency restriction ordinances. For example, in Krum, a small community located a few miles northwest of Denton, the town council in 2012 passed a residency restriction ordinance that keeps sex offenders 2,000 feet away from any place where children commonly gather. “The last thing I want,” explains Krum Mayor Ron Harris, is to receive a call from our police chief that something horrible has happened to a 3-year-old girl because we didn’t have an ordinance in place.”

Harris says that general-law cities do have the power to enact sex offender residency restrictions because they are allowed to pass laws for the health and general welfare of their residents, according to a general welfare statute. Krum, a town of 4,600 people, has one sex offender living within the town proper, he says.

Gladden argues that the general welfare statute doesn’t delegate the authority for general law cities to pass sex offender residency restrictions, and 20 Texas towns agreed and repealed their ordinances after receiving Gladden's demand letter. “People are so fearful of protecting their children,” he says. “It’s instinctual, and they become so overwhelmed by it that they don’t use their heads to implement policy that actually makes children safer. They instead respond to hysterical fear and implement policies that make children less safe as they push child molesters off the grid.”

A 2008 report from the Iowa Department of Criminal and Juvenile Justice Planning found that sex crimes against children only increased when sex offender residency restriction policies were enacted. It’s also hard for police, who are already overwhelmed by the sheer number of sex offenders on the registry, to track sex offenders when many of them end up living on the streets because they can’t find anyone to hire them or an affordable place to live because they can’t pass a background check for the one-bedroom efficiency apartment. If they happen to find a landlord who’s willing to give them a break, they still have to overcome the residency restriction, which often includes swimming pools as a place where children commonly gather.

The sex offender fear has been gripping the country for decades and led states like Georgia to push laws to the extreme, enacting mandatory life sentences for sex offenders who failed to register a second time. The law was later struck down by the Georgia Supreme Court in November 2008. “Life sentences should be reserved for society’s most serious criminal offenders,” Chief Justice Leah Ward Sears wrote in her concurring opinion.

Only 5 to 7 percent of Texas’ 85,000 sex offenders belong to the “stranger danger” class, many sex offender advocates say. Numerous studies also show that a majority of sex crimes against children are committed by first-time offenders who are the victim’s family members or family friends, not the dirty old man in a wrinkled raincoat lurking in the woods.

Mary Sue Molnar, executive director of Texas Voices and the mother of a registered sex offender, receives “tons” of emails and phone calls from sex offenders and their families simply trying to find a place to live because of residency restrictions. But she doesn’t have any advice to give because there are no resources available to help registered sex offenders.

“People hear the word ‘sex offender’ and assume that everybody on the list is a dangerous predator,” she says, “and quite frankly, the registry has become over-bloated and laws have gotten out of hand. I don’t think anyone knows how to repair the damage.”