By: Michael R. Stiff
In the Illinois Criminal Code, sexual predators and child sex offenders are prohibited from being present or loitering in or near public parks. 720 ILCS 5/11-9.4-1. For purposes of that ban, a public park is defined as a “park, forest preserve, bikeway, trail, or conservation area under the jurisdiction of the State or a unit of local government.” The definitions in that section further state that to “loiter” includes standing or sitting idly, regardless of whether or not the person is in a vehicle or even if the person is in or around the public park property or for purposes other than committing or attempting to commit a sex offense.
Sexual predator and child sex offender are as defined elsewhere in the Criminal Code. Finally, certain minor offenders are excluded from the definition of child sex offender and therefore not banned from being present at a public park.
In 2013, a Bolingbrook Police Officer patrolling a municipal park observed a vehicle parked across 3 spaces. When the officer ran the vehicle’s plate and discovered the owner was a registered child sex offender, he located the owner of the vehicle, who was walking his dog in the park and arrested him. The individual, Marc Pepitone, was charged with being a child sex offender in a public park. He was tried and a jury found him guilty. Pepitone appealed his conviction to the Third District Appellate Court claiming that the law violated his due process rights. Mr. Pepitone had been convicted in 1999 for predatory criminal sexual assault of a child, for which he was sentenced to 6 years in prison. At his April 30, 2014 trial, a certified copy of his conviction was introduced as evidence and the jury found him guilty of being in the park. Mr. Pepitone was sentenced to 24 months of conditional discharge and required to perform 100 hours of community service as well as the payment of fines.
On appeal, Pepitone argued that Section 11-9.4-1(b) is unconstitutional because it bears no reasonable relationship to protecting the public. In essence, the Appellate Court took this to be a claim of substantive due process which requires determination whether a fundamental Constitutional right is affected. If the statute bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective, the statute complies with substantive due process.
The Court determined that the purpose of the statute was clearly to protect the public, especially children, from sexual predators and child sex offenders. It was undisputed that this was a legitimate government interest. However, the Appellate Court determined to answer the question of whether the total ban of persons previously convicted of a sex offense against a minor from all public park buildings and all public parks, at all times, and without limitation, is a “reasonable” method of protecting the public.
Despite First and Fifth District cases in which the constitutionality of Section 11-9.4-1(b) had been considered and upheld, the Third District Appellate Court was not persuaded by the rationale used in those two cases, which the Court perceived as “incomplete and truncated” analyses of the issue. While acknowledging that under the rational basis test a statute need not be the best means of accomplishing the stated objective and if there is any conceivable set of facts that show a rational basis for the statute, it should be upheld, the Court also recognized that although the rational basis standard of review is “quite deferential”, it is not toothless. A rational basis test review also means that the statute must not be arbitrary or unreasonable.
The Appellate Court then went on to cite two Illinois Supreme Court cases in which two very different statutes were struck down under very different factual circumstances based on failure of the rational basis test. According to the Third District Appellate Court, the statutes in those cases did have one similarity: a lack of any “culpable” mental state. According to the Court, Section 11-9.4-1(b) reaches countless types of innocent conduct, similar to Mr. Pepitone’s walking of his dog at the time that he was arrested. The Court also held that the statute could not 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. In other words, the mere presence of an individual at a public park or building, without more, is not in any way unlawful conduct.
It should be noted that Mr. Pepitone did not raise an Eight Amendment problem based on punishment as his a child sex offender rather than punishment of any conduct. The Appellate Court therefore noted this but did not address those issues.
The Court further criticized the “extraordinary” sweep of Section 11-9.4-1(b) by noting that there is no guarantee that a child or other “target” will even be present in the park. The list of activities to which individuals subject to the statute’s ban cannot partake was noted by the Appellate Court to be extensive, and included concerts, picnics, rallies, Chicago Bears games, trips to the Field Museum, Shedd Aquarium, the Art Institute, Adler Planetarium, or the Museum of Science and Industry—all of which were noted to be public buildings on park land. Accordingly, the Court believed that the statute was overly broad in its sweep and therefore unconstitutional because it was not reasonably related to the goal of protecting the public, especially children, from individuals fitting the definition of a child sex offender or sexual predator.
This decision was a 2-1 decision with Justice Carter dissenting. Justice Carter determined that the same analysis from the First and Fifth District cases was proper and that he would reach the same conclusion, especially with the majority recognizing that to satisfy the rational basis test, the legislature’s adopted means do not have to be the best to accomplish the result but merely needs to have a rational relationship to the governmental objective.
The Third District decision was filed February 10, 2017, and on April 5, 2018, in a unanimous decision, the Supreme Court of Illinois reversed the judgment of the Appellate Court and affirmed the defendant’s conviction and sentence. In its Opinion, the Supreme Court of Illinois noted the State’s argument that it is more than mere conjecture that child sex offenders might seek victims in public parks. This was supported by numerous cases where parks were the locations of sexual assaults against minors. Additionally, the State argued that sex offenders have high rates of recidivism which have been widely accepted by courts across the country, including the United States Supreme Court.
The defense argued that “empirical studies” rebut the State’s argument on both counts. Irrespective of the argument on the actual rates of recidivism, the Supreme Court of Illinois noted that the problem for the defendant is that “the legislature is in a better position that the judiciary to gather and evaluate data bearing on complex problems.” With respect to the defense argument (i.e. that the statute is overbroad and therefore irrational because it reaches an amazingly vast array of innocent activity), the Court stated that the defendant misapprehends the nature of the statute. It does not criminalize dog walking or punish any other innocent conduct. Rather, it punishes a convicted child sex offender’s conduct of being knowingly present in a public park. The fact that Mr. Pepitone was walking a dog at the time was merely incidental to that conduct. The analogy was made to a statute outlawing possession of a firearm or firearm ammunition by a convicted felon. In such an instance, the statute makes the status of the defendant an element of the offense. The Court stated that conduct that might be innocent for most people is not innocent for those that have been convicted of certain offenses.
Ultimately, and most fundamentally, the Supreme Court of Illinois stated that the rational basis test does not require narrow tailoring but instead requires only rationality. The Court concluded that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.
Finally, it should be noted that the defendant also raised an “as-applied ex post facto clause claim” which was not addressed by the Appellate Court. The Court agreed and remanded the case for consideration of that claim.
In summary, for the moment the ban on any child sex offender or sexual predator on municipal public parks remains constitutional.
