Sunday’s Bay Area Report features an article about an East Bay community’s bewilderment as a convicted sex offender is allowed to move into a home across the street from an elementary school.

In an interview, James F. Donnelly is a 71-year-old gay man who recently finished serving 32 months in federal prison for possession of child pornography. As soon as he arrived at his sister’s doorstep at 256 Wildwood Avenue in Piedmont in February, he was in apparent violation of a 2006 law that, among other things, prohibited convicted sex offenders from living within 2000 feet of public spaces where children congregate, such as schools.

But when police explored how to relocate Mr. Donnelly, they were told — both by the Alameda County District Attorney and by a California deputy attorney general — that the 2006 law is unenforceable. The reason: the initiative that became Jessica’s Law — passed overwhelmingly by California voters as Proposition 83 on the 2006 ballot — sets no penalty for violators. (A state-run database does give information on where convicted sex offenders live.)

Here are the views some of those involved:

The Offender

James F. Donnelly, the person at the center of the dispute, objected both to the federal law under which he was convicted and sentenced and the notion that living temporarily in his sister’s home, near the Wildwood Elementary School, was illegal or even inappropriate.



According to a 2005 affidavit, federal agents wrote that they believed Mr. Donnelly visited Thailand twice a year, for a month at a time, to have sex with boys aged 10 to 14. When the agents raided Mr. Donnelly’s home, they found a scrapbook that had hundreds of pictures of boys in various stages of undress, “with names, dates and locations in Thailand, along with hundreds of images of child pornography,” the affidavit said.

Mr. Donnelly said these allegations were largely false.

All that he was guilty of, he said, was that “I had some pornography, including underage.”

He said:

It’s a puzzlement and great discomfort to any of that stuff going on because it’s all wrong. I’ve heard the same things, I’ve seen the paper, I’ve seen a copy of the letter sent to my sister. I served my time for committing a crime, a violation, which should never have been a crime.

He said he went to Thailand with a group of gay men for cultural tourism, and visited bars as any normal tourist would. When asked if he had liaisons with underage children, he said:

What do you mean, “child?” To me a conception of a child is prepubescent, anybody I’ve ever spent time with as far as I know was over legal age. I don’t date, I don’t go out and have sex. My trips to Thailand are very, very nice. It’s a welcome situation to see younger people who are interested in hanging out with me or whatever. It’s a refreshing thing to be recognized. If you know anything about gay life, if you’re not between 25 and say 35 and gym-toned, well, you’re kind of invisible.

He added:

I feel that I was terribly wronged. I never touched anybody that was a child, certainly never with anybody against their will and nor will I ever do it, that’s it.

The Parents

The young and affluent parents in this //money.cnn.com/magazines/moneymag/bplive/2007/snapshots/PL0656938.html“>tranquil community in the East Bay hills

were outraged. The police, whom residents consider reliable and competent, were unable to safeguard their children — the focus of this community.

“People move to Piedmont because of the schools,” Lia Young said on Friday morning after dropping off her son and daughter at Wildwood Elementary School. “This community is inundated with children. That’s the whole point of Piedmont.”

After the police department and the principal of the school, Carol Cramer, sent out notices to parents, some residents began to publicize the issue online. On a blog post written by Thomas Hawk, a Piedmont photographer, the handful of responses ranged from fury to disgust to tentative caution about rushing to judgment.

But the dominant tone among parents was angry bewilderment.

“Much to my disbelief,” wrote Johanna Kohr, a parent, in an e-mail message to The Times, “Jessica’s Law protects the sexual offender, leaving the community with little options.”

Other parents quickly seized upon an explanation rooted in the state’s hyper-democratic lawmaking.

“This is a commentary about California’s initiative process,” said John McWeeny, who lives next door to Mr. Donnelly and has two children who attend Wildwood. “This is one of the problems when the people of California write the laws,” he said. “They made a mistake.”

The District Attorney

Nancy O’Malley, Alameda County’s district attorney, was one of those advising the Piedmont police to avoid pressuring Mr. Donnelly to move.

She said:

Under California law, in order for it to be a violation there has to be a punishment attached. And Jessica’s Law never assigned a punishment. So there’s no law to prosecute.

She added:

One of the things that often happens with the initiative process is that the people who are writing it are often times they’re keeping it quiet because they’re trying to put it together and they don’t want it to be sabotaged before it gets to the attorney general’s desk. The breadth of eyes that look at it or the ability to vet out the language doesn’t really occur with the initiative, unlike if we passed the law legislatively.

She added:

I’m sure there was a time when the initiative process was a great idea but now we have bills on the books that really can’t be substantively changed.

The Law Professor

Franklin Zimring, a professor of criminal law at the University of California, Berkeley, School of Law, believes California politicians tend to take advantage of the initiative process to gain publicity.

“Ironically, the very feature of Jessica’s Law that makes it unenforceable may be a political opportunity to do it again,” Professor Zimring said.

He was asked if his view is exceptionally cynical.

The professor shot back, “Anyone who doesn’t find the California initiative process cynical is civilly commitable.”