A SEXUAL OFFENDER IN THE COMMUNITY

One of the most difficult decisions a board may face is what to do if it learns a sexual predator is living in the community. As an example, Joan and her three children have lived in the association for several years and have watched numerous neighbors move in and out, never worrying much about who they were. Then one day Joan heard from Sally down the hall that Joan’s newest neighbor had been convicted of child molestation several years back. In a panic, Joan immediately called every board member screaming a demand to know how the board could endanger her children by not notifying her of the child molester. Should the board have notified her? Rather than waiting for such a call, information and advance planning is necessary so that a policy is in place for dealing with sexual offenders.

Ohio Revised Code Section 2950 is Ohio’s version of New Jersey’s “Megan’s Law” which was enacted in response to the rape and murder of seven-year-old Megan Kanka. Code Section 2950 defines 3 classes of sexual offenders: “sexual predators,” “habitual sex offenders,” and “sexually oriented offenders.” Each class represents a different type of crime and therefore different obligations for both the State and the association.

A “sexual predator” is the most severe designation and is designated when a person is convicted of or has pled guilty to committing a sexually oriented offense and is “likely to engage in the future in one or more sexual offenses.” Sexual predators must register with their county sheriff; provide a current home address, name and address of their employer, a photograph and any other information that may be required. The sheriff, in turn, must notify particular community members of the offender’s status as a sexual predator and of his/her current address, if a trial court imposes such a requirement.

If the sheriff notifies a board or if a board learns that some of its residents have been notified by the sheriff of the address of a “sexual predator,” the board would be well advised to adopt a policy calling for duplication of the sheriff’s letter and distribution to all residents. Remember, a “sexual predator” is likely to engage in future sexual offenses. A board’s decision to not provide this information to the residents could lead to claims of liability if a sexual offense occurs. Worse than the claim of liability could be the board’s guilt over possibly being able to have prevented the sexual offense. By informing the residents of the presence of a sexual predator, the board is allowing residents to take individual precautions that they deem appropriate. Furthermore, notification may also limit any chance of a claim of liability against an association.

Several boards have taken steps to eliminate the possibility of a sexual predator moving into the community. These boards have introduced an amendment to the Declaration which prohibits sexual predators from living in the association. While this type of amendment has not been tested in Ohio courts, it has been upheld in other states for the reason that an association’s interest in preserving resident safety outweighed the negligible impact the restriction would have on an owner’s ability to sell or lease the residence.

A “habitual sexual offender,” the middle classification, has been convicted of a sexually oriented offense more than once. Habitual sexual offenders must also register with the county sheriff their home address. The sheriff does not, however, notify the community of the offender’s residence but will permit records to be inspected by community residents.

A “sexually oriented offender,” has been convicted of committing a sexually related crime in the past, such as corruption of a minor. Again, the offender must register with the county sheriff, but the sheriff will not notify the community residents. However, the county will provide access to records for inspection.

Unlike learning of a sexual predator, the decision of a board to notify residents of a habitual sex offender is more difficult. While the safest policy is total disclosure, many boards have recognized that there is no duty of the sheriff to inform residents and therefore there is no duty of the board to inform residents. If a board opts against specific disclosure of the lesser two categories of sexual offenders, some limited form of notification should be considered. Many boards have opted for a notice or newsletter article such as follows:

It has come to the attention of the Board that a convicted sexual offender may be residing within our area. For further information you may contact the Sheriff’s Department at (insert phone). In addition you may log on to (insert web site) and click “sexual offenders” to obtain information.

Rather than waiting for a call from a concerned owner, a responsible board should review the three types of sexual offenders and decide now upon a policy of disclosure and whether to introduce an amendment prohibiting sexual predators from residing in the association.