Life in the shadows 

Now facing a legal challenge, Georgia's war on sex offenders could punish minor violators while failing to focus on the worst ones

This January, Wendy Whitaker and her husband bought their first home, a turn-of-the-last-century bungalow on a quiet street in Harlem, Ga., just outside Augusta.

A month later, police showed up on their doorstep. Wendy would have to move, they explained, or face arrest.

click to enlarge Convicted nine years ago under Georgia's old sodomy law, Wendy Whitaker is required to re-register every year as a sex offender. - JOEFF DAVIS
  • Joeff Davis
  • Convicted nine years ago under Georgia's old sodomy law, Wendy Whitaker is required to re-register every year as a sex offender.

A 26-year-old college student on federal disability, Whitaker doesn't fit most people's image of a sex offender. But, because of an ill-considered 10th-grade blowjob -- resulting in her conviction for an act that's no longer crime in Georgia -- she has spent nearly a decade on Georgia's sex-offender registry.

Harlem police told Whitaker she was in violation of a state law that prohibits registered sex offenders from living within 1,000 feet of a school, playground or other place where children congregate. Before she and her husband of six years bought the house, she says, they made sure the property was far enough away from a public park down the street. What the Whitakers didn't realize was that a nearby church was operating a small day-care center.

As a result, they've had to move into a trailer park across the county line. They're sharing a two-bedroom single-wide with Whitaker's brother-in-law and his teenage daughter.

"We're paying a mortgage for my cat to live here," she says of the house she and her husband have had to leave behind. When she stops by to check on the property or do laundry, she says, her neighbors routinely call the cops, who drop by to make sure she isn't trying to move back in.

Now, Georgia's strict new sex-offender law -- signed by Gov. Sonny Perdue in April but delayed in federal court before it could take effect July 1 -- could force Whitaker out of the trailer park as well, leaving her with few options for living anywhere in the state. Under a nebulous loitering provision in the new law, she might not even be allowed to go to church.

"This is causing a lot of problems in my marriage," she says. "My husband can't quit his job. What are we supposed to do, separate? If this new law goes into effect, I really don't know what I'll do. I'm absolutely at wit's end."

The easy response to Whitaker's dilemma, and the one implied by Georgia legislators, who overwhelmingly approved the new law, can be summed up in two words: Tough luck.

Sponsored by House Majority Leader Jerry Keen, R-St. Simons Island, the sex-offender law increases minimum sentences for most violent sexual offenses to 25 years; requires the most dangerous offenders to wear a GPS tracking device for the rest of their lives; and requires those convicted of felony sex offenses to remain on the state registry for life.

But the law's thorniest provision expands the existing 1,000-foot residency restriction to include school bus stops, which renders virtually all of Georgia off-limits to the state's 10,000 or so registered sex offenders.

In March, when Keen, a former state head of the Christian Coalition, described to a Senate committee the intended impact his law would have on sex offenders, he didn't mince words: "Candidly, senators, they will in many cases have to move to another state."

Only one senator, Democrat Regina Thomas of Savannah, voted against the bill. In the House, it sailed through with token opposition from a handful of Democrats.

"Sex offenders are the most reviled people in society," explains a legislator who, despite misgivings, voted in favor of the bill and asked not to be named. "They're one step above terrorists; there's no political downside to cracking down on these folks."

But critics say the new law -- which is awaiting a judge's ruling this week to determine whether it can go into effect -- is likely to do more harm than good.

Law enforcement officials warn that the law is practically unenforceable and that, instead of driving offenders out of Georgia, it will cause many to go into hiding.

Lawyers predict the harsh residency restrictions and increased mandatory minimum sentences will remove incentives for accused offenders to plead guilty, which inevitably means more child molesters will escape conviction.

And experts in sex-offender treatment claim the law will do little to protect children and could actually result in more repeat crimes by offenders cut off from their families, jobs and treatment programs.

In other words, Keen may have produced a near-perfect example of a poison law -- not simply unfair or unsavory, but likely to do just the opposite of what was intended.

As DeKalb County Sheriff, Thomas Brown relentlessly attacks the new law at public gatherings and in the press, he doesn't seem a bit worried about being labeled soft on sex offenders.

"I have a responsibility to tell people in DeKalb when I can't protect them, and this law would have that effect," Brown says. "This law is nothing but election-year politicking by the Republicans."

Brown says his office has carefully mapped thousands of DeKalb school bus stops and determined that there's nowhere within the county for its 490 registered sex offenders to live. But he notes that it's unrealistic to imagine that all offenders will simply pack up and leave -- or that the county could keep tabs on the ones who don't.

"This bill will force people to go underground, and not because they're dangerous sexual predators," but because they have no place else to go, Brown says. "I have one man who's 88 years old, living in an apartment building near a bus stop."

The county already has warrants out for 90 sex offenders who neglected to show up for registration, and is home to an estimated 44 "absconders," those who have violated parole and gone into hiding.

"We're not whining about our responsibility," Brown says. "We're saying, don't pass laws that are unenforceable."

Brown may be more outspoken than most law enforcement officials, but he isn't alone in his frustration. Many of the state's 159 county sheriffs have been scrambling to figure out how to enforce the new law, says Terry Norris of the Georgia Sheriffs' Association.

Although the association has taken no official position on the law, the sheriffs forcefully lobbied Keen and other legislators to remove the bus stop provision, arguing that it represented an arbitrary standard. In many rural school systems, a bus stop is, well, wherever the bus stops. And because even officially sanctioned bus stops often change from one semester to the next, offenders could be constantly on the move.

"It wasn't as if they didn't listen to us," Norris says of the lawmakers. "It didn't matter what we said, they just didn't agree."

While some individual sheriffs have voiced support for the law, he says, others have described encounters that have left them questioning its fairness. A man convicted of statutory rape several years ago in Indiana was told to move from his Muscogee County home, where he lives with his wife and their children. Like many offenders, he was found guilty of consensual sex with an underage teen. The former teenage victim is now his wife.

When deputies told another sex offender in his 60s that he'd need to leave the house he'd grown up in because it's too close to a bus stop, the man said he planned to buy a gun after they left and would kill himself when they returned to evict him.

"I'm not trying to imply sympathy with sex offenders," Norris says. "But if certain provisions of this law inconvenience all offenders in order to make Georgia safer, then these are some of the collateral effects."

Most sex offenders would like to keep their past misdeeds hidden. As breathtakingly embarrassing as her behavior was, Wendy Whitaker wants people to know what she did. It's the only way she can convince people that the one-size-fits-all crackdown on Georgia sex offenders doesn't make sense.

In 1997, Whitaker, who had recently turned 17, was sitting in the back corner of a high-school classroom, when the teacher dimmed the lights to show a video. The boy sitting next to her suggested that no one would notice if she gave him a blowjob in the dark. So she did.

They were caught, of course. Whitaker was expelled from school and found herself facing sodomy charges. The boy, a 10th-grade classmate, was 15, although Whitaker says it didn't occur to her at the time that he was a few months shy of the age of consent. He also was black, a fact that she feels provoked a harsher reaction from local officials.

"I think the principal was trying to make an example of me when he called the cops," Whitaker says, looking back at the incident. "I'm not saying what I did wasn't wrong -- it was -- but when you're a teenager, you do stupid things."

click to enlarge Georgia sheriffs say state Rep. Jerry Keen paid little heed to concerns about his hard-line bill. - FILE
  • file
  • Georgia sheriffs say state Rep. Jerry Keen paid little heed to concerns about his hard-line bill.

Whitaker met her court-appointed attorney for the first time only minutes before her hearing.

"He said, 'Plead guilty,' and I just did what he said," she recalls. "I didn't understand any of it."

The judge sentenced her to five years of probation for sodomy but didn't order her to attend sex-offender treatment. Whitaker says she wasn't charged with sex with a minor, nor was was it explained to her that pleading guilty would place her on the sex-offender registry.

It wasn't long before she began screwing up, missing required check-ins and racking up technical probation violations. Whitaker's first-offender status was revoked and she spent more than a year behind bars: in county lockup, Pulaski State Prison for women, and a boot camp near Davisboro, Ga. In 2002, her five years of probation were over.

"I had a sigh of relief, and I thought I could just put it all behind me and be somebody," says Whitaker, who earned her GED while on probation.

But it didn't work out that way. As a registered sex offender, Whitaker has had to report to the local sheriff's office every year to be photographed and fingerprinted, and she was required to register in person with the county school board. Acquaintances have come across her name and photo on the Georgia Bureau of Investigation website. She says her neighbors in Harlem have shunned her since being alerted by sheriff's deputies of her conviction.

And not long ago, her mug shot and a map to her home were shown on the local TV news as part of a weekly segment devoted to keeping tabs on area sex offenders.

"I had to explain to people why I'm on TV for something I did nine years ago," she says. "It makes me afraid that a vigilante might try to hurt me, not knowing what it is I actually did."

Two years ago, she quit her job at a local pizza parlor and filed for federal disability, citing sleep apnea and a severe weight problem.

Whitaker doesn't believe the choices she's made in her life qualify her to be much of a role model. But she also argues that a law that applies the same harsh restrictions to teenage statutory offenders like her as it does to serial rapists is hurting people who pose little threat to society.

Of the more than 10,600 registered sex offenders living in Georgia, many were convicted of child molestation and rape. But thousands of others are on the registry for having consensual sex when they were teenagers, or for lesser crimes such as flashing, peeping through windows and sexual battery, which often translates into inappropriate touching. One of Whitaker's co-plaintiffs, a 23-year-old Georgia State student, got on the list for drunkenly groping a co-ed at a keg party.

John Bankhead, spokesman for the GBI, says his department had hoped lawmakers would do more to draw distinctions between non-violent sex offenders and those deemed potentially dangerous.

"We felt it would benefit the public to know who on the list were, say, child molesters," he says.

Although Keen's law mandates a review process that is expected to place more offenders in that category, only 14 men -- six of whom are still in prison -- are currently designated sexual predators by the state.

Adding insult to injury in Whitaker's case is the fact that Georgia's sodomy law was overturned in late 1998, just three months after her conviction. The mere two-year age difference between Whitaker and her classmate would have spared her from the registry under one of the few amendments that Keen allowed on his bill: a much-publicized clause that exempts such "Romeo-and-Juliet" convictions. The new law, however, does not apply retroactively to those already on the registry.

"It's not fair that they're applying the new restrictions on me, but I don't get any of the benefits," Whitaker says.

That's why she has devoted her time in recent weeks to serving as lead plaintiff in the federal lawsuit by the Southern Center for Human Rights and the ACLU of Georgia that seeks to block the new offender law from taking effect.

"Just because you're on the sex-offender registry doesn't mean you're a sexual predator," she says. "There's a lot of people like me, and there's no reason they shouldn't be allowed to live around children. Some have children of their own."

Whitaker wasn't the kind of sex offender Georgia lawmakers had in mind when they passed Keen's bill back in April. Many of them announced at the time that they were thinking about the fate of Jessica Lunsford, the 9-year-old Florida girl who in early 2005 was snatched from her bedroom, sexually assaulted, murdered and buried.

Last week, jury selection began in the trial of Jessica's accused killer, John Couey, who was captured outside Augusta after fleeing into Georgia from Florida. A convicted sex offender with a long criminal history and a face that would make any parent shudder, Couey makes a perfect boogeyman for law-and-order advocates like CNN's Nancy Grace and Fox News' Bill O'Reilly. Both TV show hosts have devoted hours of highly charged coverage to the upcoming trial.

O'Reilly, in particular, has been on a yearlong crusade to push get-tough legislation modeled on Florida's "Jessica's law" in all states, as well as through Congress. Keen's bill followed that state's example of requiring the very worst offenders to wear monitoring devices for life. But the Georgia lawmaker went even further by expanding the state's already tough residency restrictions to include school bus stops -- of which there are tens of thousands.

In last winter's legislative session, members of both parties allowed recent bills dealing with such issues as illegal immigration and eminent domain to evolve as the product of a normal give-and-take debate between lawmakers, interest groups and qualified experts. Not so for the sex-offender bill. Aside from the Romeo-and-Juliet provision, Keen would accept no compromises.

"Before the session began, we were told that the bill would be passed basically as-is, without many changes," explains the Sheriffs' Association's Norris.

Keen, through a spokesperson, declined to be interviewed for this story.

"It was one of those bills that was difficult to vote against because we all want our children to be safe," says Rep. Pat Gardner, an Atlanta Democrat who nonetheless cast a no vote. "But we also want the law to apply fairly and evenly and sometimes these nuances get lost in the political soundbites."

click to enlarge Whitaker was forced to leave her new home in Harlem, Ga., because she was in violation of residency restrictions under state law. - JOEFF DAVIS
  • JOEFF DAVIS
  • Whitaker was forced to leave her new home in Harlem, Ga., because she was in violation of residency restrictions under state law.

It wasn't as if lawmakers weren't warned that the bill could result in unintended consequences. Dr. Gene Abel, director of the Behavioral Medicine Institute of Atlanta, was one of several experts who went to the Capitol to testify in committee against aspects of the bill.

Abel believes that by placing so much emphasis on curbing rogue sexual predators like Jessica Lunsford's killer, the law ignores a larger public safety threat, lulling people into a false sense of security.

"Only 10 percent of child molesters are strangers," he says. "About 30 percent of these crimes are committed by immediate family, another 30 percent by extended family and the final 30 percent by family friends and neighbors." The law does little to address those dangers, he says.

A professor of clinical psychiatry at both Emory University and Morehouse School of Medicine and a national expert on the treatment of sex offenders, Abel says Georgia's new law also fuels harmful misconceptions.

"When we're talking about child sexual abusers, the public perception is of a 50-year-old man hanging around a schoolyard," he says. "In reality, the average age for a child sexual abuser is 14."

By downplaying treatment and focusing on punishing sex offenders through strict residency restrictions that cost jobs and divide families, he says, the new law could backfire, resulting in an upsurge of sex crimes.

"It's rather common knowledge that you want to reduce the stress on sex offenders because the greater the stress, the greater the risk," he says.

Treatment is key, agrees Charles Olney, research associate for the Center for Sex Offender Management, an offshoot of the U.S. Department of Justice, based in Silver Spring, Md. While the center takes no official stand on Georgia's law, Olney says it's a bad idea to disrupt the smooth integration of sex offenders back into society.

"It's not just a liberal stance to suggest these people need supervision and support to help them not re-offend," he says. "Many victims advocates realize now that communities are less safe unless sex offenders are effectively managed once they're released from prison."

Residency restrictions, Olney says, can have the effect of forcing offenders to move to remote rural areas and away from treatment facilities. Abel points out that Georgia is home to only 40 licensed treatment centers, nearly all of which are located in urban areas.

"What really bothers me," Abel says, "is that we already had a probation system that was working and recidivism was low" -- about 4 percent among child molesters involved in treatment. "This law has already caused havoc among sex offenders and their families, but it should be good for real-estate agents."

Irresistible as the issue may be for politicians, not every get-tough effort against sex offenders is born of cynicism.

In 1997, a year before the GBI's sex-offender registry went online, state Sen. David Adelman, then a Druid Hills neighborhood leader, was shocked to discover that parole officials had quietly placed several sex offenders -- including a child molester -- in an apartment building near the front gates of Emory University without alerting neighbors.

When he arrived in the state Senate as a Democrat in 2003, the first bill Adelman pushed into law placed substantial restrictions on where sex offenders could live.

"There was a real problem and I worked with experts in the field to create buffer zones around places where children congregate," he says.

Modeled on similar laws in other states, Adelman's bill prohibited sex offenders from living within 1,000 feet of a school, park, playground, day-care facility or rec center. It included no restriction for bus stops.

Adelman's legislation survived three legal challenges, all of which attacked narrow technical aspects of the law.

Adelman, a father of three who voted for Keen's bill and acknowledges that it has widespread public support, argues that the law he authored didn't impose an excessive burden on convicts.

"It's certainly reasonable for the state to enact laws to protect children," he says. "I felt my solution was moderate and enforceable."

Sheriff Brown agrees. But he says Keen and company were bent on fixing a problem that didn't appear to exist.

"I personally think the current law has worked fine," he says. "Before the new law was passed, I wasn't hearing any outcry that we need to do more to deal with sexual predators."

Once enacted, however, get-tough laws are difficult for lawmakers to undo without opening themselves up to that most sticky of campaign-trail charges: "soft on crime."

Just look at Iowa, where a similar law passed in 2002 and finally went into effect last year. It has, by many accounts, proven a disaster.

The law has effectively rendered the state's cities and sizable towns off-limits, explains Corwin Ritchie, executive director of the Iowa County Attorneys Association, which represents local prosecutors in the Hawkeye State's 99 counties. As a result, Ritchie says, many offenders still in Iowa have clustered in rural motels, live in their cars, are now homeless -- or have simply vanished from sight. The number of offenders whose whereabouts are unknown has more than tripled in recent months.

"Anything that pushes people off the registry is a bad idea," he says. "If they can't find anywhere to live, they'll just drop off the list."

Ritchie says prosecutors also have blasted the law because they believe it will make it more difficult to win convictions against child molesters.

click to enlarge DeKalb Sheriff Thomas Brown says the new sex-offender law is unenforceable. - JOEFF DAVIS
  • JOEFF DAVIS
  • DeKalb Sheriff Thomas Brown says the new sex-offender law is unenforceable.

"The residency restrictions will deter defendants from accepting a plea deal," he says, which, in turn, will require more criminal trials, where testimony by young victims can be unreliable. What's more, many parents are unwilling to press charges if it means their children would have to testify in court.

This spring, forceful lobbying by sheriffs and other groups nearly succeeded in getting the law repealed by state legislators. Ritchie is hopeful that public opinion will help turn the tables next year.

But politics being what they are, he realizes there are no guarantees.

For all the tough talk by Keen, Gov. Perdue and others who endorsed the bill, lawyers with the state attorney general's office mounted a startlingly feeble defense of the law during a two-day hearing last week in federal court.

Attorneys with the Southern Center for Human Rights called upon a series of sheriffs' deputies to testify that virtually all sex offenders would need to relocate to comply with the law. In Gwinnett, 277 of 278 offenders would have to move, testified Cpl. Karen Pirkle, who manages that county's sex offender registry. Investigator Charlene Giles of Houston County explained that all but one of her county's 136 registered offenders live too close to a school bus stop. Giles also expressed concern that displaced offenders might simply go AWOL.

"I'd much rather know where they are rather than have them abscond," she said.

Later, one of the state's chief witnesses, Mario Dennis, a Virginia psychologist, reinforced one of the main arguments against the law by conceding that residency restrictions "have the potential to raise the risk for recidivism because they could be destabilizing for offenders."

Surprisingly, state attorneys based the bulk of their defense on the dubious argument that the law would not require many offenders to move, an assertion that flew in the face of Keen's stated intent.

As evidence, they called upon the school superintendent of Pelham, a hamlet halfway between Bainbridge and Albany, to testify that his tiny system doesn't offer bus service. The implication seemed to be that Pelham, population 4,000, would make a fine haven for sex offenders.

State attorneys also argued that the law applied only to bus stops "designated" by local school boards. Since there arguably is no formal designation process -- most systems delegate the work of positioning bus stops to transportation directors -- then the issue is moot, said Assistant Attorney General Devon Orland.

"I don't know where the sky-is-falling mentality started, but it spread like wildfire," Orland said, referring to the thousands of man-hours that county sheriffs had devoted to determining the proximity of sex offenders to bus stops to prepare for the implementation of the new law.

Even if taken at face value, the argument that only certain school bus stops are considered off-limits suggests that the law is arbitrary, leading to the illogical conclusion that some children deserve to be protected while others do not.

Sarah Geraghty, the Southern Center's lead attorney in the case, expressed amazement at the attorney general's defense strategy.

"The state has spent the last two days [in court] backing away from this law," which she labeled "dangerous, irresponsible and ineffective." At the least, she added, "the governor and Legislature owe the sheriffs of Georgia a very big apology."

In the end, Judge Clarence Cooper demanded that lawyers for the state submit briefs defining exactly what is meant by "designated school bus stop" and explaining why that provision of the law should not be regarded as unconstitutionally vague. In a ruling expected any day, Cooper could decide to extend his June 29 injunction delaying the law's enforcement. It's likely to take at least another two years for the planned challenges to be completed.

Wendy Whitaker didn't testify last week. Instead, she watched much of the hearing from the back of the courtroom, hoping the outcome will eventually force the state to draw meaningful distinctions between sex offenders who pose a threat to the community and people like herself.

"I consider my offense to be minor," she says. "I've been locked up with people who've done much worse than I did -- murderers, armed robbers, drug dealers -- who haven't had to go through what I have."

Earlier this year, she enrolled in Augusta Technical College to study criminal justice but is sitting out this quarter while she meets with Southern Center lawyers and attends court hearings. After she earns her two-year degree, she'd like to go on to law school, a plan she says is motivated by her tangles with the law.

"In another year, I can petition to be taken off the [sex-offender] registry, but I don't want what's happened to me to happen to others," she says.

Whitaker is referring to a provision in the law that allows certain first-time sex offenders to have their names taken off the registry after 10 years. If she and her husband, who works for Columbia County animal control, can manage mortgage payments for another year, she explains, then she'll be free to move back into her home.

Under the new law, however, the 10-year clock starts ticking not on an offender's conviction date, but on the completion of probation or parole, which means Whitaker could be barred from her house for several more years.

And last week, she learned of one more place that would be off limits if the new law were allowed to take effect: Because some of the students at Augusta Tech are under 18, Whitaker wouldn't be allowed to return to school.

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