This Halloween, children across the country will participate in the longstanding tradition of trick-or-treating. American children have donned costumes and collected candy from neighbors since the 1940s. By the 1960s, tales of poisoned and tampered-with treats made headlines and added an extra spook-factor to the holiday. In recent years, however, many have come to wonder whether trick-or-treating leads to even more crime.

As a result, several municipalities have enacted laws and ordinances that place limitations on the custom. Many are aimed at registered sex offenders, who some claim have no business participating in the holiday tradition. This raises the question: are these laws rooted in a justifiable threat of harm? While some believe these measures are necessary to ensure a safe holiday experience, others see them as infringing on the constitutional rights of sex offenders.

Social science research has debunked several myths regarding trick-or-treating. For example, there is no evidence of increased risk of child sex abuse on Halloween. There is also no evidence to show that a child has ever been the victim of sexual abuse by a stranger while trick-or-treating.

Despite a lack of empirical evidence showing an increased risk on Halloween, many municipalities have taken an active role in monitoring the activities of registered sex offenders on October 31st. Such precautionary procedures are positive for the community as they show awareness of a potential problem and take measures intended to protect children from harm. Legal issues, however, can arise from the particular forms these precautionary measures take. In comparing the procedures implemented in several communities, one can question when such measures create detrimental legal consequences.

For example, Las Cruces, New Mexico has adopted a comprehensive scheme for ensuring the safety of trick-or-treaters. Letters were mailed to area residents convicted of sex crimes against children, requiring them to sign an agreement not to decorate their homes or pass out candy. On Halloween, probation officials and US Marshals deputies will patrol the community to ensure compliance. Such supervision does not extend to registered sex offenders who are no longer on probation. The city is also taking other measures to ensure children’s safety, such as passing out free glow sticks.

Similar mandates have been given across the country. California’s “Operation Boo” employs a broad range of protections: sex offender curfews, curfew centers for indigent offenders, parental guides, and requiring that sex offenders turn off all exterior lights to discourage trick-or-treaters. The Wisconsin Department of Corrections plans to conduct random home visits on high-risk sex offenders. Marion County, Indiana, has implemented “Operation Halloween,” requiring that sex offenders to meet with probation officials during designated trick-or-treat hours if they are on probation or parole, or subject to community corrections or no-contact orders.

Some ordinances, however, have already been legally challenged. Earlier this year, a city law in Orange, California, was challenged on First Amendment grounds. That law requires registered sex offenders to display a sign reading, “No candy or treats at this residence.” The complaint alleged that sex offenders and their families could suffer physical or emotional harm as a result of the sign. As was the case with a similar lawsuit in Simi Valley, filed last year, the Orange ordinance was repealed after filing. Nevertheless, the presiding judge upheld other precautionary measures, most notably those that are a part of “Operation Boo.” Lawsuits like this one underscore the legal questions surrounding these precautionary measures.

This ultimately boils down to exercising a high degree of safety and awareness when trick-or-treating in your neighborhood. This can be done by checking your local trick-or-treating policies. Additionally, the CDC has compiled a list of Halloween safety tips, accessible here.

Jacqueline Meyers

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