Megan's Law

Megan Kanka was just seven years old when she was brutally raped and murdered by her new neighbor. Her neighbor has since been convicted of these crimes. While these violent acts were patently shocking, Megan’s story was not unlike many others and would likely be virtually unknown if not for the passage of new federal legislation.

Unbeknownst to Megan’s parents, their neighbor had been convicted of sexual offenses involving children prior to the attack on Megan. Studies of recidivism in sex offenders indicate that statistically, this neighbor was going to revert back to his pattern of sexual molestation of children. Perhaps if Megan’s parents had known of their neighbor’s past, they may have been able to protect their daughter.

Megan’s law serves to protect the public from known sex offenders by making certain funding contingent on state agencies notifying local residents of known, local sex offenders. However, this protection has come with a high price. Since the inception of the law, a number of Megan’s law opponents have found support for their predictions that Megan’s law will result in a deprivation of civil liberties and increased violence against sex offenders, despite criminal statutes designed to deter this behavior.

Here in Orange County, locals have already seen a few examples. In Newport Crest Homeowners Association, residents banded together to conduct nightly vigils outside of the sex offender’s condominium, which included chanting and sign waving for several hours a night. This lasted several months, making life miserable for the sex offender, but more importantly for neighboring homeowners. In fact, the vigils may have never ended if not for the fact that the offender was arrested for a heinous crime he allegedly committed years prior to moving into the complex.

In another community, shortly after notices were posted in the neighborhood pursuant to Megan’s law, a resident sex offender had his car fire-bombed while it was parked outside his home. Additionally, in Placentia a sex offender was arrested after attacking a neighbor who had been allegedly harassing the offender soon after the notices were posted.

According to the Department of Justice, there are over 3,000 registered sex offenders living in Orange County. Therefore, the chances are pretty good that you have one living in your community right now. Since 1947, California has required sex offenders to register their addresses with local law enforcement so that the government may keep track of their whereabouts. Formerly, the public could only access this information by calling a "900" number and paying a ten dollar charge. But even then, the caller could only determine if a specific person was a sex offender.

Now the public may utilize the CD-ROM system offered by police departments to determine if there are any sex offenders living in a particular zip code. The CD-ROM entries also include pictures, aliases, written descriptions, and lists of offenses. In addition, homeowners may receive a notice posted in the neighborhood if the sex offender is characterized as a high risk repeat offender. While viewers can take as many notes as they want while using the system, it is a misdemeanor for a private citizen to copy the information or distribute it.

With all of this new information available, the legal community is anticipating more than a few judicial battles relating to exactly how this information can be used. Of important interest to property managers, board members and homeowners are issues relating to the existence of a duty to utilize the information in order to better inform and protect residents. This existence of a duty is analyzed under negligence standards.

California courts recognize that managers, directors and the association can be held liable under negligence theories for injuries caused by criminal acts of third parties. Frances T. V. Village Green Owners Association (1986) 42 Cal.3d 490. In fact, Associations are held to the same standards as landlords, in that the Association must protect residents as a landlord protects her tenants. Under these standards, liability is limited to criminal acts which are foreseeable.

In one landlord-tenant case, the court found that the landlord was not required to investigate a tenant’s criminal record. Davis v. Gomez (1989) 207 CA3d 1401, 255 CR 743. Therefore, it would appear that the present state of the law is that the Association does not owe a duty to the residents to utilize the CD-ROM databases. However, it is possible to distinguish the Davis case now that the information is so easily assessable and the particular offenders included in the CD-ROM database are chosen for their propensity to commit these crimes.

Herein lies the tricky part. The reason why Megan’s law was developed is because of the high recidivism rate amongst these individuals. In contrast, California courts in the past have focused their attention on the number of like crimes in the community prior to the criminal act at issue. Therefore, there is no clear cut answer as to the Association’s duty to disseminate this information. So the real issue comes down to what managers and directors should do to minimize the Association’s exposure to claims of negligence.

If agents of the Association undertake a duty to access and distribute the information to homeowners regarding the existence of sex offenders in the neighborhood, the Association may have to do this for all eternity. The reason quite simply is that the residents will generally rely on the Association to find this information and therefore the Association can not stop performing this function unless it gives adequate notice that it is no longer providing the service. Furthermore, the Association must act reasonable in its performance of the function. Therefore, a real question is left open regarding how often the databases must be checked. Is once a year reasonable, or is it closer to once a week?

The best thing an Association can do is tell the residents that they can look up the information themselves. The Association can always reduce its potential liability by informing residents how they can better protect themselves. All it takes is a simple call to the police department to locate the nearest CD-ROM provider (it will generally be at the police station). This information can be distributed to homeowners in the newsletter as a community service message.