Petty Restrictions on Sex Offenders in Massachusetts
Weekly Update #115
Dear Members and Advocates,
A good decision came out of a Massachusetts appellate court yesterday. The Court sided with a registrant who was arrested and convicted for failing to register his work address. But did he fail to register his work address? You see, the man was a handyman who did home renovations. He reported to the State and to his probation officer that he was “self-employed”. His home workshop was the work address he registered with the State, but he wasn’t renovating homes in his garage. When he got a gig he would go out to the work location and do the work. He had registered this way for more than three years, even with the knowledge of his probation officer, without incident.
In September of 2017, homeowners in Lynn, Massachusetts, for whom he previously did some renovation work, hired him to do work on their gutters and some woodwork on the outside of the home. One day, as he was heading home, he stopped to grab some dinner at a shopping plaza, when a police officer with a license plate scanner detected his registered vehicle and stopped him to question him. He told the officer he was stopping for a bite on his way home from work in Lynn. Understanding the registry, you probably already figured out what the man went through in the years that followed, but we’ll tell you anyways… The man was not only charged with failure to register his work address (ie: the address of the house he was working on in Lynn), but additionally was charged with a probation violation for failing to “refrain from work (employment) where children [sixteen years of age] or younger are present” (the family in Lynn had a baby). A District Court found him guilty and he appealed – a process that thankfully ended yesterday with a win, but not before he had to deal with an arrest, sentencing and more than two years of court proceedings. Something very few people could afford.
You can read the Court’s opinion here, but to summarize; at issue were (a) whether the requirement to register one’s “work address” means the address of one’s employer or every address at which you will be working; and (b) whether employment at a location where children are present includes a situation such as the one here, where you show up to do handyman work at a home and the family has a kid. According to the District Court, the registration rules would have required someone to give 10 days’ notice of where they will be working (preventing someone from “starting right away” and requiring everyone to become psychic and predict where they would be finding work in 10 days). It would also put all the home addresses of the customers of a level II or III registrant on the public registry (can’t imagine that would go over well in the suburbs of Massachusetts). For those who do manual labor, construction, landscaping, repair work or other jobs that don’t have a fixed office location, under Massachusetts law, if this case hadn’t gone the right way all these jobs would have effectively been precluded. As registrants, we know it’s not easy to get hired at one of these “corner office” positions and sometimes we have to take work that not many others want to do, so anything that could further impede employment options would be devastating.
Again, very thankfully, the Court sided with the man required to register and pointed out the absurdity of Massachusetts’ interpretation of the requirements in this case, or as they artfully put it, the “Commonwealth’s definition of “work address” is unworkable”. The Court also sided with him on the interpretation of “working with children” and viewed that as a prohibition against employment at a position where he would literally be working with children (ex. teaching at a school or being a camp counsellor) but not something such as performing repair work that did not involve children but that took place at a location where a child happened to be present. In the Court’s words, “he did not “work with children” in replacing a gutter or restoring exterior woodwork, nor could he, where the child was an infant”.
Vague statutes that can be subject to different interpretations by different people in positions of authority can have disastrous consequences. In Massachusetts, the man’s probation officer interpreted the law differently than the officer that arrested him, the district court judge interpreted the law differently than the appellate court did, and the poor guy forced to register is stuck in the middle just trying to earn a living with a sword of Damocles hanging over his head. Here in Florida, we are watching firsthand the incredible risk that a subjective interpretation of the phrase “within 48 hours” can bring as its playing out in the Ex Post Facto Plus challenge.
In Florida, a multitude of changes need to be reported, IN PERSON within 48 hours such as travel (establishment of a temporary residence) or changes in vehicles. The problem is; most County registration locations are not open for periods longer than 48 hours. If you rent a car on Friday after the registration office is closed and report to the office as soon as they open on Monday at 8:30 AM, does the time during which the office is closed toll the 48 hours? Or, is it 48 business hours? Or, is it simply unlawful for people in 67 Florida counties to change vehicles, travel or deal with a family medical emergency during certain times of the week? At the risk of a third degree felony and 5 years in prison, the stakes are very high!
The State is about to depose the John Doe plaintiffs in the Ex Post Facto Plus case, and unquestionably lawyers for the State will ask them about their claims that the meaning of “within 48 hours” or definition of “day” are vague or impossible to comply with. The Doe’s Attorneys have asked for immunity from arrest for the plaintiffs should they disclose situations where compliance with this rule was impossible or they did something under one interpretation that someone can interpret differently. The State has declined! Now, the Does are being put in a position where if they talk about their situation they can be arrested, but if they want to avoid arrest they can’t plead their case. Talk about having a gun to your head! To address this concern, the attorneys have had to file a motion with the court last week, which you can read here.
The motion is a very interesting read, not only because it’s well articulated and underscores the problem with having a vague statute that’s impossible to comply with, but also because it references the deposition testimony of two different individuals at the Florida Department of Law Enforcement (the agency that’s in charge of administering the registry), who provided different interpretations of the 48 hour rule. These are people in the same office who are being called as State’s expert witnesses! If they don’t know what it means, how are we supposed to know? How can you rely on your own reading of a statute, the advice of an attorney or even the guidance of a law enforcement officer, when two people (even two people in the same agency who are in charge of the whole registry) can’t agree on what it means? Hopefully, as just happened in Massachusetts, the Court will see how absurd and unreasonable the Florida law is! Stay tuned…
Sincerely,
The Florida Action Committee
Reminders:
Oct 6 Tuesday at 7:00pm ET-Hillsborough County member call. Dial 319-527-3487. Meet your County Coordinators and let them know your concerns. They want to hear from you. Keep your Hillsborough team connected and working together. With Unity Comes Change.
Oct 8 Thursday at 8:00pm ET New Member Orientation Call. Dial 319-527-3487. Learn more about the FAC organization, resources, and volunteer opportunities. All members are welcome to call. If unable to connect, text “Call Me” to 319-527-3487. You will receive a call-back and be connected to the meeting.
Oct 13 Tuesday at 7:00pm ET- Special Flagler, St Johns, Putnam, Clay County member call. Dial 319-527-3487. Meet your County Coordinators and let them know your concerns. They want to hear from you. Keep your County teams connected and working together. With Unity Comes Change.
SOME HEADLINES FROM THE WEEK
Politicians using “sex offender” barbs as ammunition
One Florida city is using a person required to register as a sex offender as mud to sling in a City Commission race. Gladys Mezrahi and Rachel Saltzman Friedland, who are both running for Aventura City Commission, are using a 2018 effort to force a registrant out of…
Feds cobbled criminal cases together in missing children operation, creating false perception
Public announcements about the operation, vague on details but full of loaded terms, led to weeks of social media misinformation about the breakup of a massive child sex trafficking ring in Georgia. “39 kids were just recovered from traffickers in Georgia,” went a…
ATSA: Registration and Community Notification of Adults Convicted of a Sexual Crime: Recommendations for Evidence-Based Reform
A new report from the Association for the Treatment of Sexual Abusers concludes that, “The research to date on SORN has not identified significant reductions in the incidence of sexual abuse or sexual offense recidivism as a result of this policy. This fact leads to…
UPDATED -Guilt by Association: Labeling Research-Based Policy Suggestions as “Pro-Offender”
UPDATED – Dr. Lisa Anne Zilney was our Guest Speaker for the Monthly Membership call Thu Oct 1 at 8pm ET. Click here to listen to Dr. Zilney. Dr. Zilney discussed this article on “Guilt by Association: Labeling Research” and introduced her latest book “Impacts of Sex…