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Tennessee legislation rips families apart

Reprinted in full with permission

By Steve Yoder . . . Last Sunday, Jason broke the news to his 7-year-old daughter: He’d be moving out. When a new Tennessee law goes into effect Monday, he will be barred from living with her. The law, Senate Bill 425, also forbids him from being alone with his daughter, meaning he can’t handle doctor’s appointments or pick her up from school, and he and his wife will need to hire childcare since she works full-time. His daughter cried when she heard but understood, Jason said, and told him she didn’t want her father to go to jail.

Seven years ago, a stepdaughter accused Jason of sexual touching, a charge he denies and attributes to discipline that he and his wife imposed. With the prosecutor threatening up to 18 years in prison, Jason says his lawyer advised him to take a plea deal that included probation, rather than risk a trial. Jason, whose name has been changed to protect his wife’s job, says the judge imposed no restrictions on him being around his daughter, and the Tennessee sex offense registry shows that he has no other criminal history.

Their predicament is likely to be felt more widely in coming months, as Tennessee implements the new law. It was spurred by Kyle Helton, sheriff of Giles County, which borders Alabama.

Alabama legislators pride themselves on making the state inhospitable to people with a sex crime in their past. Among other provisions, the state just enacted a chemical castration law and forbids adults whose offenses involved a victim younger than 12 from living with their own minor children. Helton has said that Alabama’s strict laws against former sex offenders were driving them over the border, and he wanted to put a stop to it. So he talked to his state senator, Joey Hensley, about introducing a bill that would match Alabama’s ban on living with children, according to Hensley. (The Giles County Sheriff’s Department said that Helton was not available to talk before deadline.)

Research shows relatively low reoffense rates for people convicted of sexual crimes—12 percent on average, according to a definitive 2014 study. But Helton’s lobbying paid off. Hensley introduced SB 425, which banishes people convicted of an offense involving someone under 12 from their homes if they have a child living there who’s a minor. On May 10, Governor Bill Lee signed it into law. On May 29, the Tennessee Department of Correction sent a letter to 78 people on the state sex offender registry advising them that they would need to pack up by July 1 or face arrest and prosecution.

Hensley told The Appeal that it’s an effort to protect children by keeping registrants from other states out of Tennessee. But he acknowledges that it “may make it difficult for some.”

Jeff Cherry, a lawyer based in Lebanon, Tennessee, represents five of those affected. One served seven years in prison, has been out for six years without any violations, is active in his church, and has put his life back together, Cherry says. The client also has two children—2 years old and 8 weeks old. He’ll be leaving home for good to live with a fellow church member.

In another case, a woman told The Appeal that her husband is a registrant and said the new rule forced them on June 6 to move their 11-year-old son to live with his grandmother. “They just ripped our family apart,” she says. (She had first contacted Tennessee 4 Change, which advocates for reforming sex-offense laws in the state and referred her to this reporter. She promised her husband that she wouldn’t reveal his name to a reporter for fear of vigilante violence and other repercussions.)

Cherry says the Tennessee Bureau of Investigation already has the ability to impose conditions that restrict ex-offenders from living with their children when there’s specific evidence they could pose a danger.

Tennessee and Alabama’s laws are different—they aim to separate whole classes of registrants from their families. No other states appear to have comparable statutes, according to the National Conference of State Legislatures’ Sex Offender Enactments Database. A few have passed narrower versions: A law passed this year in Utah creates a presumption that a child removed from home by a child welfare agency shouldn’t be reunified with the family if a parent is on the registry. In 2011, Arkansas passed a law that allows a court to prohibit visitation of a child with a divorced parent who has someone living in their house who is on the registry. A 2012 Oklahoma law forbids registrants from living with a minor but excludes their parent from that rule unless the child was the victim.

At least 30 states and many more localities have rules that ban people on sex-offender registries from living near parks, playgrounds, schools, and other places children congregate.

A raft of research shows those restrictions don’t lower sex-crime rates but do force many registrants into homelessness. “In summary, there is no empirical support for the effectiveness of residence restrictions,” notes a manual from the U.S. Department of Justice’ Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. “In fact, a number of negative unintended consequences have been empirically identified, including loss of housing, loss of support systems and financial hardship that may aggravate rather than mitigate offender risk.”

One researcher predicts SB 425 will have the same effect. Jill Levenson, co-author of a major study of how residence bans in Florida affect homelessness, told The Appeal by email that restrictions like Tennessee’s “should be applied according to assessments by probation officers and therapists, not by statute.” Protecting children from sexual abuse is “absolutely imperative,” she writes. But “these laws will create homelessness and transience and enormous financial burdens for families forced to support two households.”

Asked about research or experts he consulted in drafting his end-of-session bill, Senator Hensley replied that “we didn’t do a lot of research—the House sponsor did more than I did. But we met with several of the sheriffs—especially in Giles County—who asked for this law because they had personally seen children that had been affected by this.” (A call to the bill’s House sponsor, Clay Doggett, wasn’t returned.)

Many of those affected by the law most likely committed crimes years that are years old. The first 20 Giles County residents on Tennessee’s sex offender registry had a most recent offense that was on average 16 years old.

At a recent meeting with representatives of the Tennessee Association of Criminal Defense Lawyers, the lawyers asked him to move the implementation date forward to July 2020, which Hensley doesn’t oppose. But he can’t do anything until the legislature goes back into session next January, he says. By then affected families will have been split up for six months.

 In the meantime, attorneys representing three affected parents filed a request for a temporary restraining order in federal court that challenges SB 425’s constitutionality, in part because of its application to people whose offenses occurred before it was passed. At least two federal courts, including the Sixth Circuit Court of Appeals, which includes Tennessee, have ruled that retroactive sex-offense laws violate the Constitution’s ex post facto provision.

A lot is at stake for the families. One father, whose offense dates to 1999, is a single parent of a 5-year-old autistic child. Another, who has a spouse who works full-time, home-schools his 16-year-old daughter with a learning disability. Law enforcement told both that they need to be out by Sunday.

Barring a legal victory, Jason says his family will follow their usual Sunday night routine this weekend: They’ll have dinner and watch a movie or TV. Then he and his wife will put his daughter to bed, and he’ll leave for good.

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