Bronx Dad's Case Tests Restrictions on Sex Offenders
MANHATTAN (CN) - With a name resembling a kindergartner's alphabet primer, the lawsuit ABC v. DEF takes on far more insidious themes - namely the parental rights of a Bronx man who spent eight years in prison for raping his ex's teenage niece.
A federal judge issued an order in the case last week that could earn that man unspecified financial compensation from New York state.
Three law professors interviewed by Courthouse News say they have never heard a sex offender case quite like it.
Though the case was unsealed last year, a pseudonym still shields the name of the 50-year-old plaintiff.
The docket meanwhile evinces a powerful support network for his cause, including dozens of family members and friends who wrote to the court on his behalf.
Doe's attorney, Debevoise & Plimpton partner Michael Mukasey, is a former U.S. attorney general.
It's been 10 years since a jury found that Doe committed second-degree rape and other offenses against his ex-wife's niece, who accused him of assaulting her when she lived with the family between the ages of 13 and 14.
The jury acquitted Doe of the first-degree charges, and he is appealing the counts for which he was convicted, maintaining that he is innocent.
While still behind bars, Doe and his wife divorced, and he remarried another woman he had known for 25 years.
They had a child, "M.S.," shortly before Doe successfully completed his sex-offender and substance-abuse rehabilitation programs in the fall of 2012.
Since Doe requires permission to contact anyone under the age of 18, parole officers ordered him away from his new home - and into a homeless shelter - when his son turned 1 month old.
A Bronx Family Court already allowed the father of six to have unsupervised visits with his teenage daughter, and social workers saw no danger with his raising a newborn son.
Doe's accuser, now in her mid-20s, complained to a parole officer about his ability to rebuild his life.
"Why should he live happy and comfortable when he took something from [me] that [I] can't get back?" she asked them, according to court papers.
After this conversation, a Manhattan bureau chief of New York State's parole division ordered Doe away from his new family in a one-paragraph directive stating that the "victim's perspective is always important."
Bureau Chief Joseph Lima officer noted in his decision that Doe's crimes "occurred within the family constellation and in some instances while other family members were present in the residence."
Doe's attorney Mukasey noted in a legal brief that all four of their client's adult children wrote letters to the court on behalf of their father.
"He has a close relationship with his five oldest children, who range in age from 14 to 27," the brief states. "Mr. Doe has never been accused of neglecting or abusing any of these children; to the contrary, they speak fondly of their relationship with him and his importance in their lives. Mr. Doe desperately wants to establish an equally loving bond with his one-year-old son, plaintiff M.S."
In addition to his former position as U.S. attorney general, Mukasey presided as a federal judge over the case of Egypt's so-called "Blind Sheikh" Omar Abdul Rahman, the highest-profile terrorism trial before the Sept. 11, 2001, attacks.
Neither Mukasey nor his co-counsel would respond to press inquiries.
Their amended complaint sought a court order reuniting the family, plus unspecified monetary damages for deprivation of Doe's rights to due process and intimate association.
U.S. District Judge Paul Engelmeyer pushed the case forward to discovery Wednesday, in a 36-page opinion and order.
Since parole officers can impose "several dozens" of conditions on the lives of registered sex offenders, Engelmeyer said their expansive powers must face a check.
"In addition to the power to decide whether Doe may have contact with any person under age 18, a parole officer has the authority to grant or deny permission for Doe to own a camera, computer, scanner, or cell phone; possess 'any children's products' or photos of minors; rent a post office box; obtain a driver's license; 'rent, operate or be a passenger in any vehicle'; travel outside of New York City; visit an arcade, bowling alley, beach, or swimming pool; or have visitors at his approved residence," the opinion notes.
Refusing to grant immunity, Engelmeyer wrote "there are sound reasons not to give parole officers discretion, unreviewable in a subsequent court action, over so many aspects of a parolee's life."
His ruling allows Doe's claims against six DOCCS officials to advance to discovery.
The New York State Department of Corrections and Community Supervision declined to comment.
In a phone interview, George University Law professor Abbe Smith called the decision a "terrific development."
"If you commit a crime, and you're punished, you should be allowed to serve your debt to society and then move on," said Smith, who co-directs the university's Criminal Defense and Prisoner Advocacy Clinic. "[The Bronx father] has a newborn son. I can't imagine on what basis he could be deprived from having contact from his own child."
Smith added that she never heard of a case like this before because, "typically, parole officers have immunity," and the ruling emphasizes that they cannot have "limitless discretion."
David Rudovsky, a Penn Law School professor and founding partner of the Philadelphia-based firm Kairys, Rudovsky, Messing & Feinberg, LLP, called the case "significant" because it expands upon a Second Circuit case striking down restrictive probation terms involving relationships with close family members.
Unlike that case, however, the ruling in Doe's lawsuit "extended that doctrine to a damages claim against a parole officer," Rudovsky said in an email.
A civil rights attorney for more than 40 years, Rudovsky drew national headlines earlier this year after his name appeared at the top of a list of 16 Penn Law professors objecting to the due-process protections in federal directives on how universities should handle sexual assault complaints.
Rudovsky did not know of any sex-offender plaintiff who received permission to seek damages from a parole officer.
Florida State University professor Wayne Logan, an expert on sex-offender registries, said he had not heard of such a case either.
A spokeswoman for the National Center for Victims of Crime did not immediately respond to a request for comment.
Smith, the Georgetown professor, said that she felt sympathy for the Doe's victim, but she said that criminal justice must "root for people to rebuild their lives."
"Marriage and making a family, becoming gainfully employed, those are all signs that a person has abandoned their lawless ways," she said.
Miriam Aukerman, an attorney with the Western Michigan office of the American Civil Liberties Union, also could not cite a damages claim against state parole officers.
But she noted that her office challenged a blanket policy keeping convicted sex offenders from their children in Michigan. The case settled before a written opinion could be issued.