REVISED: Oklahoma's attempt at separating certain former sex offenders from family relationships

This revision replaces Commentary dated 3-21-2012.

3-23-2012 Oklahoma:

Rep. Sanders of the House and Sen. Marlatt have introduced a bill (HB 3049) which effectively is attempting to separate certain former sex offenders from their family living situations. The bill is absent a reason why lawmakers feel this is necessary, there is no mention of any danger to the child in question; the bill leaves the reason to the imagination of the reader.

The bill has TWO parts to consider, first (Section B.), defines WHO cannot live with a minor child in the HOME. Secondly (Section D.), defines additional AREAS where certain sex offenders (the WHO above) cannot reside:

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Defining WHO cannot live w/minor children in the HOME
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(Section B.) It shall be unlawful for any person who is required to register pursuant to the Sex Offenders Registration Act for any offense in which a minor child was the victim to reside with a minor child or establish any other living accommodation where a minor child resides.

Provided, however, the person may reside with a minor child if the person is the parent, stepparent or grandparent of the minor child and the minor child was not the victim of the offense for which the person is required to register.

There are a dozen or more scenarios of normal life that can be cited where an affected RSO would be living in violation of above provisions. Accordingly a few simple questions can determine if the RSO is living in violation:

1) Is the person a RSO whose victim was a minor?

2) Is the RSO the parent, stepparent or grandparent of the minor child?

3) Is the minor the victim of the RSO parent, RSO stepparent or RSO grandparent of the minor child in #2?

Not in violation if:
#1 is NO; or,
#2 is YES and #3 is NO.

Any other combinations of YES/NO represent violations.

Here are a few normal living arrangements which will technically violate the above:

A) A juvenile registered sex offender (JRO) living with his/her sibling, whether or not the sibling is the victim of the juveniles offense which caused registration;

B) Assume Scenario-A after the JRO turns 18;

C) Alice and James live together in common law. James is a register sex offender from an offense (minor victim) when he was a juvenile. Alice’s minor child from her first marriage live with them;

D) Mary and Greg are married and they have two underage boys (15 and 16) who were both convicted of sexual acts against the same minor girl at a party; both boys have to register and are registered;

E) George is 16 and a registered sex offender (victim was a minor) in living in a group home for kids with aggression problems. He is participating in a court ordered program with other juveniles;

F) Brad is 15 (a orphan) and a registered sex offender (victim was a minor) living at the local juvenile center with other juveniles.

It appears most of the daily living arrangements mentioned may not intentionally violate the bill. But look again at "C)." This is critical because it is typical of any of today's juvenile offenders, or other affected younger single person on the registry, a few years down the road. When they want to start a family, and thats what this bill is all about "Family Lives of RSOs." We cannot review this bill based ONLY upon today's living arrangements, we must look down the road.

RSOs with a minor victim will NEVER be able to cohabitate (i.e., move into a residence or establish any other living accommodation) with a woman/man who has a minor child from a previous marriage. Unless they get married beforehand (before cohabiting) and technically become a stepparent, BUT, will that be allowed or will CPS step in, which is happening all across the country.

Next we need to review the residency section of the bill, because what might appear to not violate Section B, could possibly violate Section D:

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Residency Restriction: Defines Prohibited Area/s
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(Section D.) Any person willfully violating the provisions of this section by intentionally:

1. Intentionally moving into any neighborhood or to any real estate or home within the prohibited distance; or

2. Intentionally moving into a residence with a minor child or establishing any other living accommodation where a minor child resides as specified in subsection B of this section,

shall, upon conviction ....

Undefined terms which make it impossible to determine if one would be living in violation of this section: "Neighborhood," "Real Estate," "Prohibited Distance" "any other living accommodation." The absurdity of this section can be seen in the following:

A) Is it at all possible for a RSO to know where s/he can reside if they DO NOT know the "Prohibited Distance" from the nearest home with a minor residing in it, or even know which homes have minors in them?

B) Do police know EXACTLY which homes have minor children residing in them, to determine if such is violated?

C) Babies are born everyday, would a RSO who owned a home have to vacate, move or sell if a new baby was born to a home near him?

Currently Oklahoma has a grandfather clause as to RSO residences and real estate owned, with distances to prohibited places, but it is based on RSO ownership of same before date of conviction. Here as to Minors (people) that grandfather clause would not work. The presence of a date of conviction in law is to prevent retroactive application. Here with family matters constantly changing, children are born daily and families move from home to home with children, there needs to be a different form of grandfather clause. Rights based on home ownership and rights based on family matters are different; family matters are superior rights which state law must protect through the courts!

D) "Real estate" might imply "Apartment above a store," "Apartment Complex," "Shelter," "Hotel/Motel" or what?

E) "Neighborhoods," in some areas of the nation neighborhoods have names, here it means?

F) "Moving into a residence" my concern here has to do with the word "move." I'm sure everyone is familiar with how courts have interpreted a "Move" under sex offender laws. A person is considered to have moved even if they are visiting for say a week, or staying temporarily at a motel for personal reasons (ex: family disagreement) or dozens of other scenarios. Section B already prohibits living with a minor, so why the need for "moving into a residence." It feels like something has been omitted here.

G) Applies to both Section B and Section D: "Any other living accommodation," here we see lawmakers trying to cover "anything else possible" to cover themselves. How vague can a law be and hold registrants accountable to it? This is a Prosecutor's dream to get convictions.

Section D does seem to be based on proof of "Intentionally" doing what the section proscribes, I'll give that to lawmakers. But, if ever a section of law was written vaguely this one takes the cake. The only good thing about it, is, no one could ever be convicted of violating this provision because it is so vague. There is no other way to construe Section D but void for vagueness, but thats my opinion. Yours is?

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Addition Concerns with HB 3049
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There is no doubt as written it affects formerly convicted and registered sex offenders, its retroactively applied, and that will always raise ex post facto concerns, and under certain living arrangements the law can be considered a bill of attainder. Oklahoma and US Constitutions.

Family rights are well established in all state laws and International law; guaranteed to everyone. Traditionally these rights cannot be divested except by judicial intervention. Anyone see anything in this bill allowing the courts to intervene? NO! Does due process have any meaning in Oklahoma?

Given the ambiguity and vagueness in this bill, allowing prosecutors to clarify these when a person is charged, is not smart! Prosecutors should not have any chance to convict someone of exercising their rights to live a normal family life?

The intent in this commentary is to make folks think, and get Lawmakers to do the same, no one is going to solve this with sound bites, only known legal Family Rights are at stake here, and before this bill, it took Judicial intervention to decide what is right and proper for all involved. This bill seeks to force paint-brush legislative thinking onto the RSO population and cutout courts!

For now have a great day and a better tomorrow.
eAdvocate