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.
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.
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:
TITLE 42 > CHAPTER 126
Relevant Parts of SUBCHAPTER IV—MISCELLANEOUS PROVISIONS
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:
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.
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).
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.
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
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..For now, have a great day and a better tomorrow.
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