Teacher Challenges Sex Offender Law
He Argues That a Law Barring Offenders from Classrooms Is Too Vague
Associated Press, carried in Portland Press Herald (Maine)
December 21, 1997
Lawyers representing a Bishop Guertin High School teacher charged with violating a law against sex offenders working with children are challenging the law's constitutionality in federal court.
Brother Shawn McEnany, 35, a popular teacher and head of campus ministry at the Roman Catholic school, has been indicted with violating a law that bars sex offenders from teaching or working with children.
For a convicted offender to "knowingly undertake employment" working with children is a felony, punishable by up to 7 1/2 to 15 years in prison, though the law does not penalize employers for hiring offenders.
McEnany pleaded guilty to two counts of unlawful sexual contact 10 years ago in Maine in a case involving a 15-year-old female student. He received two suspended jail sentences of 364 days and one year of probation.
McEnany's lawyers filed a petition Thursday in U.S. District Court in Concord, challenging the constitutionality of the prohibition on sex offenders working with children and the state's sex offender registration law. They want the federal court to stop the state from prosecuting McEnany.
Lawyers Michael Dunn and Robert Lucic of Manchester argue that the two laws violate McEnany's rights to due process and that the potential punishment for working as a teacher is "grossly disproportionate" to the offense.
"The goal here is laudable to protect our youth," Lucic said Friday. "But you can achieve that through a more regulated means or a more proportionate means."
McEnany has not been accused of any improper activity in his seven years as a teacher at Bishop Guertin.
Police have dropped a misdemeanor charge of failing to register as a sex offender, but Dunn said he expects prosecutors to refile that charge as the case moves from Nashua District Court to Hillsborough County Superior Court.
Bishop Guertin relieved McEnany of his teaching and ministry duties when police began investigating the case.
He is free on $ 1,500 cash bail and living at a residence owned by the Brothers of the Sacred Heart in Woonsocket, R.I. He is scheduled to be arraigned in Hillsborough County Superior Court on Jan. 8.
He is arguing in federal court that the law barring him from working with children is too vague.
"The line between proscribed activities and lawful acts is so obscure that reasonable persons would differ as to both the class of persons to be restrained as well as what activities those who are restrained may legitimately engage in and those which are prohibited," McEnany claims in the petition.
He also argues that his conviction in Maine does not qualify as a sexual assault under the New Hampshire law.
McEnany also claims that his potential punishment for teaching in New Hampshire is "grossly disproportionate to the offense, especially where the alleged violator has fully disclosed his prior conduct and his employer has requested that he perform teaching duties."
McEnany also argues that both laws violate his rights to due process by not giving him any right to be heard before barring him from teaching and requiring him to register as a sex offender.
Bishop Guertin officials were aware of McEnany's criminal record when they hired him in 1990. Headmaster Brother Leo Labbe has said he believed McEnany had rehabilitated himself and learned from his mistake so that he would not be a danger to students.
Neither McEnany nor Bishop Guertin officials were aware of the law barring sex offenders from teaching, according to his lawyers.
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