Tuesday, May 17, 2011

Topic: Americans with Disabilities

Note: On or about the 3rd of each month ADA, on their website, publish "Disability Rights: Online News" and you never know what might be in that or if it can help you in some way. I always read it.
Americans with Disabilities Act:
General Information

The intent here is not to explain the ins and outs of the Americans with Disabilities Act (ADA) (Website) (Text of Law before and after 2008 Amendments), but to show how and when ADA MAY APPLY with respect to sex offender laws, both state and federal.

Visitors please note, unless you have some kind of a "qualified disability" nothing below is likely to apply to you. Those who have applied under some ADA section (or State disability law) know if they have a "qualified disability."
Please DO NOT ask us if your condition is or isn't a "qualified disability" as we are not qualified to make such a determination.
The U.S. Department of Justice has "A Guide to Disability Rights Laws" which might help folks understand the laws involved; there are more than just ADA. Also, folks need to remember that there are fines that come into play when ADA is violated in some way.

ADA is a very powerful law, and under certain circumstances, ADA may override a sex offender law or force the law to operate a certain way. It is impossible to broadly define the "circumstances," suffice to say, when a registrant's circumstances (based on his/her qualified disability) butt heads with a sex offender law thats when ADA comes into play. However, with that said, ADA will not exempt a sex offender from laws s/he must follow.
Note: Having been qualified -under State or Federal law- as a person with a "qualified disability" does not necessarily mean you would be entitled to relief from sex offender laws under the Americans with Disability Act! Much more is necessary.

Is Having a Sex Offense Conviction
a Disability Under ADA?

Bad news folks, even though it is believed that person who commit sexual offenses have some form of a mental illness, and cannot be cured, where "cured" implies some form of treatment (i.e., medical or psychological), ADA on those bases exclude sexual offenders (and others) from claiming that, the sexual offense (or what flows from such a conviction) is a disability. Proof of this is found under Title-V of the Americans with Disabilities Act, most recently updated in 2008 (A long read of that update is HERE).

The Specific Sections of law are:

§ 12101. Findings and purpose
§ 12102. Definition of disability
§ 12103. Additional definitions
§ 12208. Transvestites
§ 12211. Definitions
(a) Homosexuality and bisexuality
For purposes of the definition of “disability” in section 12102 (2) [1] of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.
(b) Certain conditions
Under this chapter, the term “disability” shall not include—
(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania; or
(3) psychoactive substance use disorders resulting from current illegal use of drugs.

Now, even though the above persons are prohibited from claiming a disability on the grounds mentioned, they may still be able to make other claims under ADA. See the following circumstances:

In-Person Registration:
Is it possible for the rest of a person's life?

ADA requires public facilities (i.e. places of registration) to be accessible. Registrants using walkers, crutches and those in wheelchairs must be able to get to register, so some accommodation may need to be made. Call and explain your circumstances and ask for a reasonable accommodation, if your circumstances prevent you from getting in to register.

Registrant's with hearing or vision disabilities may need a reasonable accommodation during registration. Registrant's that do not speak the language of the folks who run the place of registration, may need an interpreter.

As folks get older and live in nursing homes, old age homes or similar facilities, it is possible these folks are not able to follow sex offender laws, as written, and may need a reasonable accommodation. A registrant recovering from some accident or illness may need a reasonable accommodation.

Adam Walsh Act:
Recognizes Relaxing Rules Under Certain Circumstances

Within the Guidelines (Under Substantial Compliance page-38048 Federal Register version) that State Legislatures are to follow, the following is found:
For example, section 116 of SORNA requires periodic inperson appearances by sex offenders to verify their registration information. But in some cases this will be impossible, either temporarily (e.g., in the case of a sex offender hospitalized and unconscious because of an injury at the time of the scheduled appearance) or permanently (e.g., in the case of a sex offender who is in a persistent vegetative state).

In other cases, the appearance may not be literally impossible, but there may be reasons to allow some relaxation of the requirement in light of the sex offender’s personal circumstances. For example, a sex offender may unexpectedly need to deal with a family emergency at the time of a scheduled appearance, where failure to make the appearance will mean not verifying the registration information within the exact time frame specified by SORNA § 116.

A jurisdiction may wish to authorize rescheduling of the appearance in such cases. Doing so would not necessarily undermine substantially the objectives of the SORNA verification requirements, so long as the jurisdiction’s rules or procedures require that the sex offender notify the official responsible for monitoring the sex offender of the difficulty, and that the appearance promptly be carried out once the interfering circumstance is resolved.

Above are some examples, the possibilities are endless. Lawyers experienced with "Reasonable Accommodation Requests" under ADA should be consulted when reasonable requests are refused by local sex offender registration officials.

We have yet to see any State law that recognizes human frailties, but we know these circumstances are occurring and being dealt with by registration officials. Given ADA is applicable to human beings it can be used in any state should there be a need.

What about Residency / Proximity Laws?

There are some sex offender laws that exempt registrants residing in certain facilities (i.e., hospitals, jails, prisons, etc.) from residency laws. All sex offender laws should follow suit but do not. A reasonable accommodation may be in order for certain registrants based on their personal circumstances.
Evictions from Nursing Homes Stopped Sheriffs Agree not to Force Elderly and Severely Disabled People onto the Streets

SCHR Press Release
Date of Publication:

ATLANTA , GEORGIA, October 30, 2006 – HB 1059, Georgia’s sex offender legislation, has taken another hit as Sheriffs in several counties agree not to enforce a portion of the law.

Two weeks ago, lawyers from the Southern Center for Human Rights (SCHR) and the American Civil Liberties Union of Georgia filed a Motion for Preliminary Injunction on behalf of nine elderly and/or severely disabled people on the registry. This Motion specifically addressed the provision of HB 1059 that prevents people on the registry from living within 1,000 feet of a church. Because of their advanced age and/or physical condition, these plaintiffs are not a danger to anyone, yet the residency restrictions of HB 1059 make no exception for them.

Attorneys and the Sheriffs in the counties where the plaintiffs live have reached agreements that elderly and disabled individuals named in the Motion will not be evicted from their homes, nursing homes, and hospice care facilities. These agreements will allow these elderly and ill people to live the remainder of their lives with dignity, receiving appropriate medical care and attention to their conditions.

“Once again, the Georgia Legislature’s ‘one size fits all’ policy for the treatment of people on the registry takes us into the realm of absurdity,” states Sarah Geraghty, an attorney at SCHR representing the plaintiffs. “Sheriffs are now required by law to evict Alzheimer’s patients and the terminally ill from their nursing homes if these facilities are within 1/5 of a mile of a church. Never mind that some of these patients cannot even stand up, or walk without assistance.”

One of the people affected by the ban on living within 1000 feet of a church is John Doe I, who has end-stage heart disease and a prognosis of six months or less to live. He requires 24-hour medical care and is spending his last days in a secured nursing unit. Another person who will no longer face the threat of eviction is John Doe VII, age 81, who has Alzheimer’s disease and requires 24-hour care and is never left alone. As the Alzheimer’s disease progresses, Mr. Doe is losing the power of speech and cannot recognize family members.

“Forcing a terminally ill man with less than six months to live out of his hospice care facility because he resides within 1,000 feet of a church is irrational and does nothing to promote children’s safety,” continues Geraghty. “Members of the Georgia Legislature must own up to the fact that they wrote a bad law, and remove this church restriction.”

Editorial Boards of Georgia newspapers have been questioning the usefulness of HB 1059 in light of the potential of nursing home evictions, stating that the law is “…as wisely crafted as a concrete canoe” (“Be tough and Smart” Columbus Ledger Enquirer, October 19, 2006). The Rome News Tribune editorial from October 26, 2006 declares that HB 1059 has turned Georgia into a laughingstock and proposes that “…there should be a law that those who rape common sense aren’t allowed within 1,000 feet of the Golden Dome.”

Reasonable Accommodation Request (RA):
General and Scope

The State of Connecticut brings us "ADA and Reasonable Accommodation" which is a good starting point for a definition, but ADA's RA scope is barely touched upon.

While RA was first used in the context of employment, and still is, it has expanded to cover Housing as well. see "REASONABLE ACCOMMODATION IN HOUSING FOR THE DISABLED."
Reasonable Accommodation Requests should never be attempted to get someone released from any facility that they have been court ordered to (i.e., sentenced to or civilly committed to). Such an attempt would likely be considered frivolous and result in sanctions and raise the ire of any court involved.
The heart of the Americans with Disabilities Act is to mainstream people with disabilities and remove hindrances, and while there may be limited, if any, case law proving a RA is applicable to sex offender laws, the spirit of a RA tells us that such must be extended to sex offender laws based on the circumstances of the person. Those laws completely ignore the frailties of life as a human being!
Above we see examples of where a RA can be used, but those examples are not the limits. As laws controlling former sex offenders, change more and more, the applicability of a RA moves to center stage. Minds control the next application..

eAdvocate@gmail.com is all ears to find other ways that a RA can be used and willing to listen to new possibilities.
For now, have a great day and a better tomorrow.
eAdvocate (BACK to the Top Page)

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