NH: Public pool can’t ban sex offender

PORTSMOUTH — City Attorney Robert Sullivan confirmed he recently met with a group of people who are concerned because a registered sex offender has been using the Portsmouth Indoor Pool.

The pool, located near the high school, is used by community members and youth and school swim teams.

After the meeting, Sullivan said, he reached out to the American Civil Liberties Union of New Hampshire to get its input.

“The actions which the city might be able to take or which the city might be prevented from taking would be dictated by the particular aspects of the situation,” Sullivan said this week.

Gilles Bissonnette, the legal director of the ACLU of New Hampshire, said he told Sullivan that it would be “unconstitutional” for the city to bar the registered sex offender from using the pool, just because he’s a sex offender.

“The concern in these types of cases is that there is an equal protection clause problem,” Bissonnette said Tuesday. “That would be the case if regular members of the public are able to access these public facilities but a sex offender is precluded from accessing these facilities. The sex offender would be being treated unequally.”


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I think they’ve simplified this too much.

It’s much more than an Equal Protection issue, because equal protection only covers the same people in the same circumstances. A convicted person on the registry is not the same as a person that never committed a crime.

The real issue is that being on the sex offender registry has nothing to do with being dangerous, since you are on it for an arbitrary length of time due to an arbitrary list of charges and there is no requirement that you are deemed dangerous to be on it. Therefore, it’s more of a substantive due process issue because if you’ve never had a process to judge your level of dangerousness and for how long you are dangerous, then the registry is irrelevant and can’t be used to deny you anything that a regular person would have access to. That’s how it becomes an “equal protection” issue with the lack of “substantive due process” to come to any conclusion about you and what needs to be done to protect the public from you.