AUGUSTA — When 17-year-old Rebecca Penczer of Readfield discovered a registered sex offender had taken photographs of her without her knowledge while she was at Starbucks in Augusta and posted them online, she was appalled and disgusted.
She got past it by trying to forget it ever happened. Until Monday when, fighting back tears, she talked about what happened to her, how it made her feel, and asked state legislators to put the law on her side.
“I thought about it and thought I don’t want other girls to feel this way if they don’t have to,” Penczer told state legislators on the Criminal Justice and Public Safety Committee on Monday. “I’ll feel much safer in public if I know the law is on my side, not on the side of the guy taking photographs.”
The photos of Penczer were among hundreds of other photographs, all fully clothed and taken in public places and most of young girls,local parents said they found posted online recently on multiple social media sites allegedly by an Augusta man who is on the state’s sex offender registry.
Horrified parents were even more outraged when they found out what the man was doing is not illegal. Parents spoke in favor of a bill sponsored by state Rep. Matt Pouliot, R-Augusta, that would make it illegal for registered sex offenders to take photographs of other peoples’ children without permission. Several women who testified in favor of Pouliot’s bill, L.D. 1813, wore matching maroon T-shirts that said “#timeforachange,” the name of a Facebook group formed to advocate on the issue.
But Pouliot’s proposed legislation has already been met with concern that it’s unconstitutional.
Pouliot said the proposed bill is straightforward and meant to protect children. He said numerous local families were impacted by the man’s behavior and there was nothing law enforcement could do about it.
“There were several of photographs there of me with my 11-year-old grandchild, I was horrified,” Suzanna Dee said of discovering the online stash of photographs taken at several public places in Augusta. “Page after page after page of my granddaughter. It was heart-wrenching to realize she’d been stalked by a pedophile. I felt violated. Watched. And afraid. Please pass this bill. Because I don’t want to be afraid.”
The Augusta lawmaker said he’s willing to consider changes to the legislation to make sure it would withstand any challenges in court.
“My goal is to make sure we’re passing a bill that will hold up (in court) but that also has some teeth,” Pouliot said.
But John Pelletier, chairman of the Criminal Law Advisory Commission, which advises the Legislature on criminal law matters, said the commission reviewed the bill and believes it is unconstitutional as currently written.
Pelletier said the Supreme Court has held that images of children that are neither obscene nor pornographic are considered protected speech subject to First Amendment protections. To limit the behavior, he said, the state has to identify a compelling state interest and address it as narrowly as possible. He said making everyone on the sex offender registry subject to the new law would be too broad of a net to cast.
He proposed, as an alternative more likely to be found constitutional, attaching the ban on taking photographs of other people’s children to anyone convicted of substantive sexual offenses against children under 14 years of age. He said people with such convictions already are banned from intentionally or knowingly initiating direct or indirect contact with a child under 14. He said a more-specific definition of indirect contact could be added to the law, to specify that taking photographs of children under 14, after being told to stop doing so, could be considered making prohibited indirect contact.
Under questioning from legislators, Pelletier acknowledged that requiring a written warning to be issued before someone could be prevented from taking photographs of children would not prevent such incidents from occurring at least once, but could stop someone from repeatedly doing so.
In the Augusta incidents that prompted the concern, authorities knew quickly who was posting the photographs, Kennebec County District Attorney Maeghan Maloney noted. Maloney said she supported Pelletier’s proposal, but with a modification so it applied to anyone convicted of substantive sex offenses against someone under the age of 18, not 14.
Sen Bill Diamond, D-Windham, said it will take some careful planning to pass a bill that will pass constitutional muster.
Jessica Sproul of Waldoboro said 80 photographs of her 10-year-old daughter enjoying an afternoon of shopping with her grandmother and aunt were taken by a man in Augusta and posted on his social media pages, without them knowing. She said her daughter was the direct subject of the photos, and was not just captured in the background.
“I’ve never, in my years as a parent, felt as inadequate as I did in that moment,” she said. “She should not have to wonder or worry about this happening when she is in public. But she does. And I do.”
Augusta police have acknowledged receiving numerous complaints about the man, who is on the sex offender registry because he was convicted of three counts of gross sexual assault, involving a victim younger than 14, in 2006 in Portland Superior Court, according to the sex offender registry. But they said taking photographs in public is not illegal, even for a registered sex offender.
Police confirmed the man is a registered sex offender but said he is neither on probation nor restricted from taking photos in public spaces.
The Kennebec Journal and the Sun Journal are not identifying the man because he has not been charged with a crime in connection with the reports to police. The online sites where the man reportedly posted the photographs appear to have been taken down.
Branda Chasse testifies Monday in favor during a public hearing before the Committee on Criminal Justice and Public Safety at the State House in Augusta. (Kennebec Journal photo by Joe Phelan)