Sex Offenses That Prohibit Entry On School or Other Property

There are few things more precious to us other than our children. Many people required to register on the SOR are abandoned by family and friends and are left without any hope for their future. However, for the some SOR registrants, their family closeness remains intact, even if the registrant is forced to live apart from their loved ones.

For example, if an SOR registrant was a parent before their conviction, or becomes one after, their registration does not strip them of parental rights. SOR registrants, however, encounter legal difficulties in performing some of the most basic tasks of parenthood. Violent sexual offenders on the SOR are prohibited from entering certain properties, the most notable of which is school property. Realizing the problems this could cause for parents on the SOR, the Virginia Legislature enacted a statute which contains a provision that can relax the prohibition against entering schools and daycare facilities.

The registrant may petition the circuit court, pursuant to Code of Va. § 18.2-370.5(c) for permission to enter school or daycare grounds. The steps to make such a petition are quite formulaic. The individual must notify the Commonwealth's Attorney, and the school administrator the school board superintendent, the owner of the private school or daycare. If the court grants the petition, it may impose limitations or other terms on the permission to enter. Even if a Court does grant its permission, the school authorities may still deny such permission. There is no guide in the statute, as to how one should proceed if this occurs. The Board of Education appears to have the final word.

The steps in obtaining permission to enter school property should be carefully adhered to. Generally, it is good practice to serve the Commonwealth Attorney and the school superintendent (proprietor, administrator, or owner). At that time, the Petitioner should seek to obtain separate permission from the school board or individuals listed in the statute. At the time a hearing is set the court can, on its own motion, order the Petitioner to notify the public at large of the hearing on his petition, once a week for two successive weeks in a newspaper meeting the requirements set forth in § 8.01-324.[1] Alternatively, a more formal hearing can be held with the court entering an Order for the publication before the evidentiary hearing on the Petition. Note: While the Petition may be drafted with the moving party being "John Doe" the publication requires the Petitioner's actual name. While not explicit in the statute, the case of Doe v. Virginia. Department of State Police[2]makes this clear. Citing the earlier case of Jones v. Murray[3],the court held that: "The true gravamen of [the] complaint is that [the individual] must reveal [their] identity – in the Registry and to the Board. An 'individual has no right to privacy in [her] identity.'"[4] Obtaining the state court order is sine qua non of entry into schools and daycare centers. Until the Virginia Circuit Court allows entry, neither the Board nor the proprietor of a daycare can admit a registrant onto its property.

Doe is also helpful in providing guidance to the lawyer in how to proceed with a case regarding entrance of an offender onto School property. The plaintiff in Doe claimed a violation of her Substantive Due Process. Citing the case of Waybright v. Frederick County[5], the court in Doe reinforced that for there to be a violation of Substantive Due Process, such a violation must "shock the conscience." The Court found that claimed violation did not shock the conscience.

Another issue that the Court in Doe had with the petition was that it was not ripe. The Court based this decision off of the fact that Doe was suing for a deprivation which had not yet occurred. § 18.02-370.5(C) provides a clear procedural framework for how Doe should have attempted to gain entrance to the properties in question. She did not follow these procedures, and the Court held that "whether she would suffer injury in the application process is purely conjectural."[6] Until Doe followed the procedures laid out under the statute, and was denied entry, the case, the Court held, simply was not ripe for judgment.

Finally, the Court found that Doe lacked standing in all, except for one of her claims. For standing to exist, there must be an injury in fact.[7]The court reinforced its statement that Doe had not suffered an injury in fact, except for her placement on the SOR itself, and therefore on all except that single claim had no standing.[8]

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[1] See Appendix 7-1 Following this chapter for the text of this statute

[2] 2001 U.S. Dist. LEXIS 68939; 2011 WL 2551014

[3] 763 F. Supp. 842, 848 (W.D. Va. 1991)

[4] Doe, supra note 2, at 23-4

[5] 528 F. 3d 199, 204-5 (4th Cir. 2008)

[6] Doe, supra note 2, at 18

[7] For a discussion of the requirements to have both ripeness and standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

[8] Id.