Lawsuit seeks to clarify sex offender registry rules

 by Cynthia Price

Legal News
“This is about the basic need of people to get shelter,” says Miriam Aukerman of the segment of the homeless population being prevented from staying at downtown shelters because of their sex offender status. “These people were already sentenced for their crimes, and they were not sentenced to death.”
Because the major homeless shelters are within 1000 feet of Catholic Central High School, anyone who is required to register as a sex offender may not stay in them.
Or so the legislation has been interpreted until now.
Miriam Aukerman of Legal Aid of Western Michigan is representing four unnamed homeless clients, Bill Farr is representing Dégagé Ministries and Skip Pylman Mel Trotter Ministries, in a suit to obtain a declaratory judgment and injunction. The defendants named are  Governor Granholm, the Attorney General, the director of the Michigan State Police, and the Kent County Prosecutor.
The purpose of the suit is, first, to ask the court to enjoin against prosecution of Aukerman’s clients for staying at such homeless shelters; and second, to obtain a definitive ruling on, primarily, the meaning of the word “residence” in the Michigan registry law.
Federal law mandates a registry for current whereabouts of sex offenders, but the statute in Michigan goes beyond Federal requirements.
The suit contends that the definition of “residence” does not include temporary stays in homeless
The impetus for such a lawsuit was the early 2009 death of Thomas Pauli, who was found frozen in the Heartside District after a shelter was forced to refuse him entry based on the accepted reading of the law.
Regarding the Sex Offender Registry Act (SORA), MCL 28.722 reads, in part:
“(g) ‘Residence’, as used in this act, for registration and voting purposes means that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a wife has a residence separate from that of the husband, that place at which the person resides the greater part of the time shall be his or her official residence for the purposes of this act. This section shall not be construed to affect existing judicial interpretation of the term residence.”
The parties to the recently-filed lawsuit make the case that a one-night stay, even if repeated, is not the same as residency.
Another case questioning the concept of “residence” is currently in the province of the Supreme Court, according to Aukerman. People v. Dowdy concerned a Lansing homeless man who claimed he was unable to register because he did not have an address. In February, a Court of Appeals panel, composed of judges Jane Beckering, Jane Markey, and Stephen Borrello, ruled that homeless people are indeed unable to register in compliance with SORA, and asked legislators to consider how the law might be modified to close that loophole.
After investigation, Aukerman found that the situation exists in many cities throughout Michigan.
The Grand Rapids shelter directors would like to take in homeless people accused of Criminal Sexual Conduct (CSC), but feel that their hands are tied by the Michigan law.
Says Marge Palmerlee, Executive Director of Dégagé Ministries on Division, “We want to make sure that everyone has access to safe respite, out of the elements. I feel terrible that we may be turning someone away needlessly, and as a community I feel we have an obligation to get clarity on the law.”
Aukerman thinks there is a lot of confusion on the part of the general public about what constitutes a CSC offense. People with little experience of sex offenders assume that all who must register are dangerous predators. In fact, Michigan’s SORA makes no distinction between someone who has repeatedly molested young children and someone who has been caught urinating outdoors three times, for example.
Any reading of the research about sex offender recidivism reveals that it is a difficult subject, in particular because sexual crimes are highly susceptible to underreporting. However, studies have indicated that the rates average between 14 and 20 per cent over five-year follow-up periods. Certain types of offenders are much more likely to re-offend than others. These include pedophiles who molest boys, and rapists of adult women.
Aukerman tells of one of her clients who was convicted of CSC because he had sex when he was 19 with someone who lied about her age — claiming to be 17 when she was only 15 — which she admitted to police. Nonetheless, he was con-
victed, and that conviction will haunt him for many years to come.
Though it is a side issue to the current lawsuit, Aukerman said she and others would like to see the registry requirements make a distinction between those who are a recidivism threat to others and those whose offenses are mild and unlikely to recur.
“There are actually mechanisms that can predict the risk of recidivism for CSC offenders,” Aukerman says. “Why not concentrate law enforcement’s time on those at high risk for repeating their crimes?”
As Aukerman and others have pointed out, it is extremely ironic that the homeless sex offenders are free to travel anywhere in the neighborhood during the day, when school is in session, but precluded from resting at night when it is not. In addition, it is counterintuitive to encourage roaming around freely at night, when stays at the shelter are locked down and supervised — and at least in the case of Dégagé and Guiding Light Mission, limited to a single gender per facility, with no children allowed.
Aukerman explains that, after Pauli’s shocking death, homeless shelter administrators and Legal Aid of Western Michigan joined representatives from the Coalition to End Homelessness, the religious community, and such agencies as Salvation Army Booth Family Center to talk about how to prevent such a tragedy from happening again. Guiding Light Mission, where Pauli had asked to stay the night he froze to death, was part of the task force but is not a party to the suit.
The group eventually decided to ask the Michigan State Police for a declaratory ruling on the meaning of “residence” and how they were enforcing the law. When the State Police declined, the group felt the only recourse was to undertake the lawsuit.
“Clients are in this impossible situation where they say, do I risk going to shelter and face prosecution, or do I sleep on the street – it’s a horrible position to be in,” said Aukerman.
The homeless shelters would like the option to set their own policies about CSC offenders.
Currently the case is mired in procedural issues. The defendants removed the case to Federal Court, and plaintiff’s motions to return it to the Ingham County Circuit Court, where it was filed, are under consideration. Aukerman expects to hear the ruling on that motion in the very near future.

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