People v. Pepitone, 2017 IL App (3d) 140627 (February). Episode 298 (Duration 4:34)
Third District finds the charge of being a child sex offender in park to be facially unconstitutional.
Defendant was walking his dog on a public park.
He has a prior predatory criminal sexual assault of a child conviction.
He came to the police's attention because he parked across 3 parking spots.
He was convicted of being a sexual offender in a public park (720 ILCS 5/11-9.4-1(b) – A class A misdemeanor for first offense).
Defendant challenges the constitutionality of the charge and asks whether it is a reasonable means of achieving the legislature’s stated goal of protecting users of public parks from child sex offenders and sexual predators.
His claim is that section 11-9.4-1(b) sweeps too broadly and must, therefore, be struck down.
Rational Basis Test
Where the statute does not affect a fundamental constitutional right, the test for determining whether the statute complies with substantive due process is the rational basis test.
To satisfy this test, a statute need only bear a rational relationship to the purpose the legislature sought to accomplish in enacting the statute.
Pursuant to this test, a statute will be upheld if it bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.
To pass constitutional muster under rational basis review, a statute must not be arbitrary or unreasonable.
Sexual Offender In A Park
Section 11-9.4-1(b) of the Criminal Code of 2012 provides that:
“[i]t is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.”
720 ILCS 5/11-9.4-1(b).
Other challenges to this law that have been struck down under a violation of due process claim and have not addressed the rational basis directly.
The court found the lack of any culpable mental state and the reach to countless types of innocent conduct, like say, walking a dog to be very problematic.
In addition, the instant statute cannot be reasonably construed as aimed at preventing a substantial step toward the commission of a sex offense against a child or any offense that would result in an individual qualifying as a sexual predator (see 730 ILCS 150/2(E).
Mere presence in a public park building or public park, without more, is not unlawful conduct.
The Previous Law
The previous version of this law was different.
The predecessor statute not only limited the prohibition against being in the park to times when children are present on the premises, it also required that the offender “approach, contact, or communicate with” the child.
By contrast, the sweep of the current iteration of the statutory prohibition is extraordinary. At most, section 11-9.4-1(b) could be premised on a vague notion that a child or other “target” may be present in a public park building or on public park property.
But the presence of such a person in a public park building or public park is certainly not guaranteed, and, in light of the particular circumstances, may not even be likely.
Section 11-9.4-1(b) is an outright ban on all individuals with certain sex offense convictions from public park buildings and public park property without any requirement that anyone—particularly a child—be actually, or even probably, present.
Another Problem With This Law
The statute also obviously makes no attempt to assess the dangerousness of a particular individual.
Further, the statute also criminalizes substantial amounts of innocent conduct, including the walking of a dog.
As appellate counsel for the defendant pointed out during oral arguments, the list of activities that routinely occur in public park buildings or on public park property, and in which individuals subject to this statute’s ban cannot partake is extensive.
These can include:
- attending concerts
- Chicago Bears games at Soldier Field
- Expeditions to the Field Museum
- The Shedd Aquarium
- The Art Institute
- The Adler Planetarium or
- The Museum of Science and Industry
all of which are public buildings on park land; bird-watching; photography; hunting; fishing; swimming at a public beach; walking along riverwalks; cycling on bike trails; hiking at Starved Rock; and the list goes on and on.
We believe that this statute contains the type of overly broad sweep that doomed other statutes.
In those other cases, statutes that potentially punish innocent conduct violate due process principles because they are not reasonably designed to achieve their purposes.
The court held that section 11-9.4-1(b) is facially unconstitutional because it is not reasonably related to its goal of protecting the public, especially children, from individuals fitting the definition of a child sex offender or a sexual predator.
Nor is it drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights he has as a citizen and taxpayer from a person who has paid the penalty for his crime and is compliant with “collateral consequences” requirements established by the General Assembly.