The Southborough Police Department’s failure to realize a convicted sex offender was violating a town law by living near a preschool for two years is reinvigorating a debate on whether residency restrictions are working.
“Nothing is foolproof,” said Carol Willoughby, a Southborough day-care center owner who in 2008 helped create the local bylaw that prohibits Level 2 and 3 sex offenders from living within 1,000 feet of areas where children or the disabled may congregate.
“Somebody did drop the ball. It’s expected. I don’t expect the Police Department to be perfect, but now they know of the situation, and they are correcting it,’’ she said.
But for John Reinstein, a lawyer with the American Civil Liberties Union of Massachusetts, the Southborough case is further proof that restricting where sex offenders live does little to protect children.
“It’s essentially ‘not in my backyard,’ but the sex offenders have to live somewhere,” said Reinstein, adding the position that residency restrictions are effective “is not borne out by statistics.”
The ACLU has filed a lawsuit challenging a sex-offender residency restriction that took effect in Lynn last year. The outcome could affect more than 30 Massachusetts cities and towns with similar restrictions.
Laws that prohibit sex offenders from living in close proximity to schools, parks, recreation centers, and nursing homes — enacted in at least 30 states — are getting another look after the Sept. 30 arrest of Daniel Goichman, 50, of Southborough, a Level 2 sex offender, on three counts of possession of child pornography.
In what Southborough Police Chief Jane Moran calls “a terrible mistake,” Goichman had lived for the past two years within 1,000 feet of the Southborough Village Preschool at 14 East Main St., in violation of the town’s bylaw. Moran said Goichman registered as a sex offender with her department and checked in regularly as required, but she admitted police erred by not noticing that his apartment’s location was violating the local ordinance.
Goichman, who was convicted in 2002 of indecent assault and battery of a person over 14, is being held on $75,000 cash bail on the child porn charges. He faces a $150 civil fine for violating the town’s bylaw, police said.
Goichman’s lawyer, David Goodhue, could not be reached for comment.
The owner of the Southborough Village Preschool declined to comment on the case.
Southborough’s police chief said an internal investigation has been completed. “It was a mistake that we made, and once it was discovered we took immediate corrective action,” Moran said. “It was human error.”
She said outdated computer equipment that didn’t notify her department of a violation, and lack of a formal policy on how to enforce the bylaw were to blame. She said officers will now visit the residences of each sex offender on a regular basis, and a police lieutenant, rather than the former practice of using a civilian administrator, will be in charge of oversight.
In Southborough, offenders found violating the residency rule are subject to a $150 fine and given 30 days to move away, and fined $300 per day if found to still be in violation after the 30 days.
Willoughby, who operates the Child Dynamics Day Care facility in her home, crafted Southborough’s bylaw more than four years ago in collaboration with the police chief at the time, William Webber, who died of cancer shortly after its implementation.
She said she felt prompted to take action after discovering a neighbor was a convicted sex offender, and was arrested in another town for exposing himself to young girls.
“When you have these people in an area where there are children, it just heightens their ‘need,’ ” Willoughby said.
But the ACLU and Reinstein take a different view, and point to studies that show restricting where sex offenders live has had no statistical impact in reducing the number of sexual assaults on children.
After a statewide sex offender residency restriction took effect in Iowa in 2005, the number of child sexual assaults actually increased, from 913 cases in the year prior to the law’s implementation to 928 and 1,095 cases the following two years, respectively, according to a 2008 study by the Iowa Department of Human Rights, a state agency.
According to the US Department of Justice, 93 percent of sexually abused children are harmed by family members, close friends, or acquaintances.
Willoughby acknowledges the statistics, but said they don’t change her view.
“It’s almost like a tease, he’s seeing all these kids around him,” she said of her former neighbor. “It exacerbates the feelings of him being with children.”
There are six registered sex offenders living in Southborough, Moran said, with two classified as “Level 3,” meaning they’re considered most likely to reoffend.
Only 10 percent of Southborough does not fall within 1,000 feet of a school, day-care center, playground, or other areas covered by the bylaw, greatly limiting where sex offenders can reside, Moran said.
“That’s one of the consequences of their mistakes, and overwhelmingly Town Meeting felt that was justified,” said John Rooney, chairman of the Southborough Board of Selectmen.
Reinstein, however, calls the limitation something else.
“It’s banishment,” Reinstein said. “It means you can’t live in the entire town, and that in turn concedes the authority of one town to determine sex offenders have to live elsewhere.”
Other area communities with similar restrictions include Ashland, Framingham, Hopkinton, and Marlborough.
Natick does not restrict where sex offenders can live, but a 2009 bylaw prohibits them from loitering at youth athletic events.
Many communities with residency restrictions, including Southborough, also prohibit sex offenders from visiting places where children or those with disabilities may congregate.
In the ACLU’s lawsuit against Lynn, the organization said the ordinance bans approximately 200 sex offenders from living in 95 percent of the city.
Reinstein said residency restrictions are counterproductive because they encourage offenders who can’t find affordable housing to stop registering their addresses with police and to leave their families, which means they become harder to monitor.
“They’re less likely to commit other crimes if they’re in a stable environment,” he said.
Willoughby, however, calls Reinstein’s contention “an excuse.”
“I don’t think they’re trying hard enough to find a place to live,” she said.
The ACLU’s lawsuit against Lynn represents five unidentified plaintiffs who are sex offenders, one of whom is developmentally disabled and became homeless after the city started enforcing the ordinance in November. Lynn opted to put the ordinance on hold while the lawsuit, which was filed in the spring, is pending, according to city attorney James Lamanna.
Under state law, Attorney General Martha Coakley’s office ascertains whether town bylaws are legal before they can be implemented. The agency does not have the same responsibility for city ordinances.
Coakley’s office ultimately approved Southborough’s 2008 bylaw, but Assistant Attorney General Kelli E. Gunagan disapproved two initial portions of it, regarding loitering and arrest.
In a letter to the town clerk, Gunagan wrote Southborough’s definition of loitering was “unconstitutionally vague,” which could “promote arbitrary enforcement.” Gunagan also removed a portion of the law that would have allowed Southborough police to arrest violators under the theory they were disturbing the peace.
On Oct. 10, Gunagan reviewed a sex offender residency restriction recently approved by the Western Massachusetts town of Charlemont. The bylaw was approved, but with lengthy warnings that it could be challenged in court.
“A byaw that effectively bans sex offenders from being within the town of Charlemont, or substantial portions thereof, might be the subject of a due process or other constitutional challenge in court,” Gunagan wrote. “Charlemont’s bylaw might be seen as an effort to avoid what a court might characterize as the town’s shared burden of accommodating sex offenders.”
Rooney, the Southborough selectman, said he is not worried about a legal challenge of his town’s bylaw.
“If someone wants to litigate that, I think you can make an argument of proximity to sexual recidivism,” Rooney said, and noted that the overwhelming majority of comments from town residents “have been in support of the bylaw.”
“At some point in time it may be deemed unconstitutional,” said Moran, the town’s police chief. “But until that point, we have to uphold the bylaw.”