This week a judge in Santa Clarita issued a restraining order prohibiting Jack McClellan, admitted pedophile, from being near children in California. McClellan has not violated any law, but runs a website for pedophiles talking about his favorite public places to loiter and watch children.
Law professors are outraged. Volokh from UCLA says this is unconstitutional because McClellan has not committed any crime so there is no probable cause and so no restraining order can be issued. I think this analysis misses the point and I'm surprised the law community has skipped so many good arguments to rush to the aid of the pedophile.
It is not necessary to have committed a crime to have a restraining order issued. All the plaintiffs would need to show is that there is probable cause that the defendant will harm the plaintiff. This is the interesting part of the issue. Assuming (which is probably true) McClellan will probably act upon his disgusting impulses, it will certainly harm someone. But will it be the plaintiffs? Who can identify who that child will be? So can he be restrained from being around any child because he may harm one? It seems sensible to say yes, but it sets a dangerous precedent. Could a racist be barred from being near any black person? Could someone who reads the bible literally be prohibited from being near homosexuals?
It makes sense to allow restraining orders that prohibit dangerous people from being near a large group of unidentified people. The policy behind a restraining order is to protect someone who is in danger from someone who has shown a propensity to harm them. Given that policy extending the protection to groups does not seem too problematic.
It is also worth considering, where McClellan will be allowed to go. Since nearly every store in every town has children in it, he will not be able to continue living in California. This may violate other Constitutional requirements of federalism, since it will force California pedophiles to other states (you currently can't export poor people; pedophiles are more problematic).
Subscribe to:
Post Comments (Atom)
1 comment:
This is especially relevant as more and more people are classified as sexual predators, and not in the funky 1970s way. This seems to be the next step in a continuum of punishment, and like all good punishment, it infringes on some constitutional right. First sex predators had to register, then they couldn’t live by schools, then they couldn’t be anywhere near children, then they had to all go live in France, etc. Society is going to have fun as those who fuel the passions that drive sexual predators increase in acceptance, while their victims are castrated. What should we do with them and the Constitution? FICA!
Post a Comment