Sex Offenders in Your Community - Facing the Facts
Many people move into Community Associations throughout the area due to the many added benefits an Association offers including a more “secure” neighborhood. However, there is a hidden reality that many residents of an Association may be surprised to confront – a sex offender living in their community, amongst them in plain sight. Of course, sex offenders are a real and a major concern to any resident. Common reactions from residents include questions of:
- How do we remove sex offenders from our community?
- How can the Association prevent sex offenders from residing within the Association moving forward?
- Does the Association need to notify its members of the presence of the sex offender, and could it be held liable if it fails to do so?
In taking on this issue, Associations must understand where the laws which uphold the rights of individuals to have access to information pertaining to sex offenders in their area are based. Unfortunately, there is no controlling case-law or statute relating to Associations and sex offenders. However, in 2003, the Supreme Court of the United States upheld Megan's Law ruling that information about sex offenders may be posted on the internet. Megan's Law was enacted as a result of a seven year old girl who was raped and murdered by a new neighbor who, unbeknownst to the girl's parents, was convicted of prior sex offenses involving children.
Each state has a version of Megan's Law, which serves the purpose of protecting the public as a whole from known sex offenders, as well as methods for disbursing relevant information about known sex offenders. Delaware, Maryland, Washington, D.C., and Virginia each have a Sex Offender Registry website. These local jurisdictions' websites along with other national websites are accessible by anyone with internet access, and are easily searchable in a number of different ways. The Registries are a public record, and provide details about any registrant (sex offender), including name, address, a photograph and information about the registrant's conviction. Consequently, this information is available to anyone from a public source, and is not information within the exclusive possession of an Association. Notably, sex offenders are required to register their address when they move. This information is updated in the respective Registries as it changes.
When taking steps to protect its members from registered sex offenders, the Association must look to whether its governing documents provide a duty to notify members of this type of information and or any other type of public information. In our experience, it is common that an Association does not have this duty, and it is highly unlikely that an Association would be held liable for a failure to provide such notification, as long as it did not, gratuitously, undertake the responsibility to do so. If an Association were to assume such a responsibility, there would, in our view, be a greater resulting risk of liability than if this responsibility were not assumed.
 Smith v. Doe, 123 S.Ct. 1140, 1144, 538 U.S. 84, 86 (U.S.,2003).