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MA Statute Banning Sex Offenders from Living in Nursing Homes without a Hearing is Unconstitutional, Says MA SJC

Written by Samantha Kingsbury

This case involved “John Doe,” a 65-year-old registered level-three sex offender.  After serving time in jail, Mr. Doe was released to a homeless shelter. After sustaining serious injuries during a mugging, he was hospitalized and later discharged to a nursing home.  Eventually, he moved to a rest home.  In 2010, Boston Police notified Mr. Doe that because he was a level-three sex offender, he could not live in the facility. 

Mr. Doe sued, challenging the constitutionality of the statute under which the police were attempting to remove him (M.G.L. ch. 6 § 178K(2)(e)).  In pertinent part, this statute provides that no level-three sex offender “shall knowingly and willingly establish living conditions within, move to, or transfer to” any convalescent or nursing home, rest home or certain other enumerated long-term care facilities.  The issue eventually reached the SJC, which ruled that, as it was applied to Mr. Doe, the statute was unconstitutional because it infringed on his protected liberty and property interests.  The SJC also found that the statute violated Mr. Doe’s right to due process by failing to provide for an individualized determination that the public safety benefits of requiring him to leave the rest home outweighed the risks to Mr. Doe.

In explaining its decision, the SJC pointed out that the “statute presumes that all members of a class of sex offenders are dangerous to every community of rest home residents.  It affords no opportunity for [Mr. Doe] to demonstrate that he represents no or a minimal danger to the community the law is intended to protect and makes no provision for the necessary balancing of [Mr. Doe’s] individual circumstances against the Commonwealth’s interest in protecting vulnerable elders from sexual assault...”  As such, the SJC ruled that Mr. Doe (and other persons in the same situation) must have an opportunity to establish that he poses minimal risk to the community the statute was intended to protect and, if removed from the rest home, will likely become homeless and expose himself to significant harm. 

It remains to be seen what new challenges this decision will present for long-term care facilities attempting to provide a safe environment for their residents while at the same time ensuring that all individuals in need of care are able to obtain it.  While this ruling addressed circumstances particular to Mr. Doe, long-term care facilities should bear it in mind as they address registered sex offender resident admissions.  This issue will be of concern to individuals and their families as they select the appropriate facility for themselves and their loved ones.

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M. Daria Niewenhous

Member Emerita

Samantha advises clients on regulatory and enforcement matters. She has deep experience handling violations of the federal ant-kickback statute and FCA investigations for clinical laboratories and hospitals.