Dark Times Ahead for Sexual Offenders in Minnesota: The POR-CPS Pipeline

Sexual abuse is an issue that stirs strong emotions in most people. Although the nature and degree of harm suffered by victims remain points of contention, it is clear that many victims experience strongly detrimental effects. The focus in our field has been subtly changing over the past several years from risk management to prevention, which is a good thing. Concurrently, policymakers have continued to enact legislation intended to assuage the public's fear and fury over sexual abuse; however, a good many of those laws or policies are poorly grounded in research, if they consider the research at all. Worse still, some of these measures have the capacity to make matters worse.

A case in point...

In the Land of 10,000 Lakes, life will be a lot more difficult for more than 25,000 sexual offenders.* A small change in MN statutes went into effect in 2012, with broad-reaching consequences. Even after guys successfully complete treatment, conditions of probation, and a minimum ten years of SO registration, they will now be subject to ongoing child protection investigations, potentially for life.

The changes in state laws now flags everyone who is currently on the MN Predatory Offender Registry (POR), and every offender who has EVER been on the POR, as fitting the new definition of threatened sexual abuse of a child. With a few new sentences, the legislature has created sweeping new mandates for reporting to county child protective services (CPS) any current or former predatory offender living in a household with children or having any unsupervised contact with children.

The POR-CPS pipeline was perhaps intended to target anyone who has sexually abused and is living in a household with kids. But it goes far beyond that. The definition of predatory offenses in Minnesota includes many crimes other than criminal sexual conduct. But the assumption underlying these new statutes is that all predatory offenders are perpetually at risk for sexually abusing children, and they should not be unsupervised around kids. As the laws are currently written, the POR-CPS pipeline never ends – even after POR expires. By status, sex offenders are now subject to CPS review for life.

I became aware last fall that something had changed after receiving requests from CPS workers for documentation that former juvenile clients had completed sex offender treatment- in some cases 10 or 20 years ago. Reviewing new statutes, consulting with colleagues, and talking with specialists at MN DHS, the impetus for these new CPS inquiries emerged.

It appears the legislative changes began with state efforts to comply with CAPTA, federal legislation that provides state grants for child protection. The new legislation had little discussion among legislators or participation by stakeholders. It appears legislators and policy makers did not consider the ramifications of implementing this careless piece of legislation. After quietly going into effect in August 2012, virtually no one recognized the logistical quagmire that had been created. The outcome includes onerous consequences for offenders, confusing responsibilities for professionals, and costly security theater for the public.

Mandated Reporting - CPS

Child protection investigations will now be mandated by POR status; not by new allegations of abuse or established indicators of risk. Because the laws are so new, and investigations are mandatory, CPS social workers are unsure of what to do with reports; especially if offenders are on the POR for reasons other than a sex offense, or if offenses occurred many years ago.

While some SO’s are being required to undergo new risk assessments or psychosexual evaluations, CPS seems to be minimally looking for evidence of completion of sex offender treatment. For offenses that occurred decades ago, or otherwise in the absence of good records, CPS authorities appear to be accepting letters from professionals who have knowledge or evidence that offenders at one time completed treatment. CPS workers have signaled that some kind of a “certificate of completion” might be sufficient to discharge CPS responsibilities to at least ensure kids are not living with an untreated sex offender.

Colleagues have occasionally participated in discussions about what constitutes “completing treatment,” with few agreements on unifying standards. Perhaps even more confounding is that completion of treatment, of course, is a static event. Dynamic circumstances may result in ongoing demands for psychosexual assessments or other measures for CPS authorities to perpetually determine that kids are safe to be around specific offenders – or more accurately, whether certain offenders are safe to be around minors.

Child protection laws were intended to be specific to protecting identified children. Reports will still require a specific child (or children) to be the identified target of a CPS investigation, but these new laws now effectively shift the CPS focus from a specific child to ANY child who lives with or has unsupervised contact with a predatory offender.

Other adults living in a household with a child cannot ignore this new law. Adults who are not mandated reporters might still have a duty to report. A parent who fails to report a former abuser in their household meets grounds for substantial child endangerment, and risks legal consequences that can include losing their own children. The abuser doesn't have to be a caregiver or in a position of authority; simply anyone who is/was on the POR, even teenagers.

If offenders have children, move in with partners who have kids, or perhaps move to a new county, they can be subject to repeat investigations based simply on POR status. The state has a system (SSIS) to track social service investigations but those records are scant and subject to expiration. Minimally, to manage repeat investigations, it seems a permanent predatory offender data base will be necessary to track sex offenders for life. Documenting treatment might be the easy part - that information could be added to existing POR records. New protocols will be needed to periodically re-evaluate risk - assuming risk is going to be a factor.

Consider the implications under mandated reporting: if a professional is aware of someone that has ever been on the POR is living with or having unsupervised contact with different children, ostensibly each child is the subject of a new report –unless we are, in reality, reporting the offender. No new allegations or risks are required to mandate a report, just knowing the status of the offender. This is a reporting minefield for professionals - putting most mandated reporters at risk for legal consequences and licensing board actions.

How might these laws affect offenders in Minnesota?

Guys who have sexually abused typically come to understand they have not only caused harm to others, but that their own lives are irrevocably changed.  Public records and POR will often prevent them from obtaining housing, attending schools, finding jobs, serving in the military, and will block virtually every career path that requires a license – even if the offense occurred as a juvenile. Now, for anyone who has sexually offended, having children, or at least being a parent, is no longer a right.

As part of the 2012 legislative package, there was another change made to state laws that so far has gotten little attention: “birth match.” Essentially, when fully implemented, “birth match” will compare public birth records with state POR records and will automatically notify CPS when anyone who has ever been subject to POR is listed on a birth certificate. Along with well-wishes from family and friends, targeted parents should expect a visit from CPS. Investigations are mandated. The implications of these new state laws are that sex offenders should not have children, live with children, or be around children, without ongoing monitoring by the state.

It appears the burden of proof is now on sex offenders to demonstrate, whenever requested, they are safe to be around kids. If they have kids, failure to cooperate with CPS could result in a termination of parental rights. The adverse effects of these new policies are already having damaging consequences on former offenders, and are destabilizing their families. Some guys have been ordered out of their homes until they can provide evidence of SO treatment.

This state law effectively invokes parenting as a privilege. Every offender’s risk to children is now presumptive. CPS does not have to justify their intrusion with a complaint – having ever been a predatory offender is probable cause. With both parents subject to arbitrary welfare checks, there is an ever-looming threat of CPS intervention. Offenders need to perpetually prove they are fit to be parents and safe to be around children; their partners need to demonstrate they are appropriately protecting their kids from child endangerment.

Consider these likely outcomes... with the prospect of life-long CPS investigations, how many sexual offenders will simply choose to be childless?  To avoid embarrassment or risk to family and friends will SO’s decline invitations to events or avoid places where they could be thought to be unsupervised around children?  How many fathers will be easily sued for child custody by the mother of their children?  Or will dads recognize the futility of fighting for custody and voluntarily surrender their children?  Pretty discouraging future for teenagers with sex offenses? As a practical matter, how many of these guys will find a partner who will choose to raise kids with someone who is subject to lifetime monitoring by CPS?

Most sex offenders are already profoundly discouraged about ever escaping the SO label. Beyond legitimate worries about housing and employment, they have to get through at least ten years of POR without a single error (felony non-compliance). This nasty piece of legislation makes “predatory offender” a lifelong label, introduces more impediments to recovery, and will make Good Lives a lot more difficult to achieve. Even conscientious guys who are making outstanding efforts to repair damaged relationships are destined to a more dismal future.

Some of our colleagues on professional listservs have recently reported client suicides. We shouldn’t ignore the likelihood that stigmatizing, onerous, and largely unwarranted restrictions are going to result in more offenders experiencing diminishing hope and recovery fatigue. For most people in arduous circumstances, feelings of hopelessness are typically transitory, even if momentarily acute. Public policies that place immutable restrictions on sex offenders simply by status are misguided and unjust. Hope for a better future is both a motivating resource and an essential component for healthy, productive lives. We should not be surprised that the loss of hope, even for the most resilient clients, comes with a tipping point. The only uncertainty is where that point is, and what sad outcomes are on the other side.

There might be a little good news

It appears the language in state statutes went beyond the requirements of CAPTA. If attempts at legislative relief can avoid public perceptions of being soft on sex offenders or putting children at risk, legislators MIGHT be able to rollback some of the unwarranted requirements. Some CPS authorities believe onerous investigations might go beyond the legislative intent of the new statutes. State officials also indicate that CPS guidelines are advisory and each county will be responsible for establishing their own protocol for receiving reports and conducting investigations. That double-edge sword can be moderated by good training and professional teamwork.

It is also encouraging that the news and concerns about this problematic legislation spread quickly in the professional community. In January more than a hundred professional stakeholders, including many MnATSA members, met to discuss the new legislation, the problems that have ensued, the latitude for interpretation, and the potential for redress. Some stakeholders have raised the question of a court challenge. MnATSA leadership has indicated that these imprudent laws are a legislative priority.

The POR-CPS pipeline might just be the latest example of unfounded public policies around sexual offender management – a nationwide trend rooted more in misinformation, fear, and anger than reasonable measures for public safety. There is no constituency for sexual offenders; it is up to conscientious professionals to promote prudent legislation or judicial relief. Until then, professionals can work together to comply with existing policies, mitigate misguided consequences, and help offenders and their families to strive for better lives.


* A comment on labels: As much as we try to avoid the sex offender label, these guys in Minnesota will have to get used to it. The State has given lifetime status to sex offenders and, unless repealed, it is a label these guys will have to learn to live with. And why the frequent reference to these “guys”? Because 99%+ of offenders subject to SORN are male. If ever we had good demographic data about where prevention efforts should be targeted, “guys” is a good place to start.

Minnesota Mandated Reporting Laws:
https://www.revisor.mn.gov/statutes/?id=626.556

MN DHS Child Maltreatment Guidelines (CPS investigations): https://edocs.dhs.state.mn.us/lfserver/public/DHS-5144-ENG
 
View an interactive training on mandatory reporting in Minnesota

 

Jon Brandt, MSW, LICSW

 
A postscript (June 16, 2013)

Unfortunately, the Minnesota Legislature adjourned for 2013 without resolving these problems. In February, a collaboration of MN stakeholders put forth legislation (MN Senate File 460) to fix the POR-CPS pipeline. In the final days of the 2013 MN legislative session, the MN Senate passed the bill, but it was tabled in the House. When legislative changes to this misguided public policy were pending, many counties in Minnesota had essentially put the "pipeline" on hold. Now, as county authorities re-evaluate interpretation and local implementation of applicable child protection measures, hopefully professionals will recognize unwarranted intrusions and mitigate counter-productive outcomes to former offenders and their families. MN DHS, county authorities, and professional licensing boards may need to clarify muddy issues that remain, particularly around mandated reporting. Hopefully, the 2014 legislature will take another run at closing the POR-CPS pipeline. JB