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West Virginia Sex Offender Does Not Have Right to Attend Specified Church

The West Virginia Supreme Court held on February 22, 2013 that a convicted sex offender does not have an automatic right to attend religious services of his choice. The Court’s ruling was not based on the right to exercise religious freedoms under the state or federal constitutions, however; it was instead based, as the petitioner urged, upon a provision of the Home Incarceration Act.

Before the state Supreme Court was a habeas petition filed by Charles R. Elder, who entered guilty pleas to charges of sexual abuse by a person in a position of trust and third-degree sexual assault. In its brief, the state alleged Elder had “perpetrated hundreds, if not thousands, of sexual assaults against his stepdaughters while they were minors and that after one of the stepdaughters was impregnated by the petitioner, the petitioner himself performed a crude abortion on the victim.”

Due to Elder’s diagnosis of Parkinson’s disease, post-traumatic stress disorder and depression, he was allowed to serve his concurrent sentences of ten-to-twenty years and one-to-five years on home confinement. The Supreme Court noted this was the first time it had “squarely addressed the issue of whether home incarceration constitutes the qualifying level of incarceration for purposes of seeking post-conviction relief in habeas corpus,” and the Court found that home confinement met the definition of “incarceration” and thus the requirements for filing a habeas petition.

As to Elder’s ineffective assistance of counsel claim raised in his petition, the Supreme Court held that given Elder’s “admission to committing undisputedly offensive criminal conduct,” his attorney’s failure to file an unmeritorious appeal and motion for reconsideration did not constitute ineffective assistance.

With respect to Elder’s claim that the trial court had refused to allow him to attend religious services at the Weston Church of God, the Supreme Court acknowledged the Home Incarceration Act provides for religious exceptions. However, Elder had overlooked “an implied need to determine whether [the statute’s] exceptions apply to the particular offender,” which was subject to the trial court’s approval.

Elder was not attending church at the time he was sentenced, and the trial court took into account its “duty to protect the children who would either be on the church bus or van or inside the sanctuary during worship services.” The trial court also noted that the pastor and members of the Weston Church of God were regularly visiting Elder’s home for Bible studies. Although Elder “does not have an automatic right to attend religious services” under the Home Incarceration Act, he “is free to exercise his religious freedom in other ways,” the Supreme Court concluded. See: Elder v. Scolapia, 230 W.Va. 422, 738 S.E.2d 924 (W.Va. 2013).

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