Hot Topic: Nursing Homes for Sex Offenders & Violent Offenders

SJC: 2006 law banning sex offenders from nursing homes unconstitutional

8-5-2011 Massachusetts:

A 2006 state law prohibiting the most serious sex offenders from living in nursing homes or other long-term care facilities is unconstitutional, the Supreme Judicial Court ruled unanimously Friday, contending that it infringes on their liberty and property rights and violates their 14th Amendment right to due process.

In a ruling penned by Justice Fernande Duffly, the court contended the 2006 law strips level three sex offenders of the right "to live where they choose" without providing any opportunity for those offenders to defend themselves through a public hearing process to present a rebuttal.

"The statute presumes that all members of a class of sex offenders are dangerous to every community of rest home residents," Duffly wrote. "It affords no opportunity for the plaintiff to demonstrate that he represents no or a minimal danger to the community the law is intended to protect and makes no provision for the necessary balancing of the plaintiff’s individual circumstances against the Commonwealth’s interest in protecting vulnerable elders from sexual assault."

Duffly noted that the court has previously upheld laws that require sex offenders to register with the state, which may in turn publicly post their registration information online. In those instances, sex offenders are entitled to a hearing to rebut their classification. But that classification hearing is not enough to deprive offenders of their freedom of movement, which the court argued is a much more significant limitation than the limits on their privacy rights imposed by the registration requirement.

The Legislature included prohibitions on level three sex offenders in nursing homes, infirmaries, rest homes and charitable homes for the elderly or developmentally disabled as part of a larger 2006 law that extended the statute of limitations for prosecuting sex crimes against children. The provision punishes violators with a sentence of up to 30 days for a first offense, and up to two-and-a-half years in a house of correction or five years in state prison, and a five-year minimum sentence for any subsequent offense.

When the law passed the House in 2006, Rep. Eugene O’Flaherty highlighted the provision and said he would spare his colleague "graphic details" about incidents in nursing homes that had occurred involving level three sex offenders.

In the case ruled on Friday, a level three sex offender identified only as John Doe would likely have become homeless and personally endangered if he were forced out of the rest home in which he resides, according to the SJC.

"[T]he plaintiff must have an opportunity to establish that he poses minimal risk to the community the statute was intended to protect and, if removed from the rest home, will likely become homeless and expose himself to significant harm," Duffly wrote.

According to a background of the case included in the ruling, John Doe - diagnosed with Asperger’s Syndrome and who also suffers from glaucoma, seizures and "poor personal hygiene" - was convicted in 1992 of two sexual offenses involving young male children. He was jailed again in 1997 for a parole violation that was not a sex crime. When he was released in 2008, Doe was found "not to be sexually dangerous."

Upon his release, Doe stayed in a homeless shelter for a year and was attacked several times, once resulting in hospitalization. He was released from the hospital and placed in a state-regulated rest home in February 2009. Staff at the rest home were aware of his status as a sex offender. According to the court’s description of the facts, Boston police notified Doe in 2010 that he was ineligible to remain in the rest home under the 2006 state law. A court-appointed defense attorney then sought legal protection to keep him in the home.

The Sex Offender Registry Board concluded that although Doe’s age - he was 65 at the time the proceedings against him began - the fact that his crimes never involved adult victims, and the fact that the rest home provided him with a "stable environment," his criminal history and lack of counseling put him at a "high risk of reoffense and high degree of danger" that required him to register as a level three offender.

Julie Goldman, a prosecutor in the office of Attorney General Martha Coakley, litigated the case on behalf of the Boston Police Department, the attorney general’s office and the Sex Offender Registry Board. ..Source.. by Kyle Cheney / State House News Service (John DOE [FN1] vs. POLICE COMMISSIONER OF BOSTON & others. [FN2] SJC-10916. August 5, 2011.)

No comments: