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Phillip C. Querin, Partner
Partner - Portland, Oregon Office
philquerin@dwt.com
(503) 241-2300
Megan's Law and Sexual Predators
[September 2003]
Megan’s Law, named after seven-year-old Megan
Kanka, who was raped and murdered by a sexual predator, was enacted
in 1996. It requires: (1) The registration of sex offenders, and
(2) Public notification of private and personal information regarding
registered sex offenders. Individual states are allowed a certain
amount of discretion in establishing the criteria for public disclosure.
In Oregon, the legislature first authorized the designation
of “predatory sex offender” in 1993. A “predatory
sex offender” is defined as a person who “…exhibits
characteristics showing a tendency to victimize or injure others
and has been convicted of a sex crime (as further defined in ORS
181.594), has been convicted of attempting to commit one of those
crimes or has been found guilty except for insanity of one of those
crimes.” ORS 181.585(2) provides for the use of a sex offender
risk assessment scale approved by the Department of Corrections
in determining whether a person should be designated as a “predatory
sex offender.” Because it bears such a stigma, Oregon courts
give parolees a procedural due process right to a hearing to challenge
the designation. Constitutional challenges to the predatory sexual
offender designation and the community notification provisions of
the law have uniformly failed.
After a person is deemed to be a predatory sex offender,
Oregon law provides that within ten days of determination, the agency
supervising the offender is required to notify the Oregon State
Police with relevant information regarding the individual, including
their residence, identity, physical description, photograph, and
a variety of other relevant facts. This information may, upon request,
be made available to the public. When supervision is terminated,
the State Police are again notified.
Unless it is determined that doing so would “substantially
interfere with the treatment or rehabilitation of the supervised
person…” ORS 181.587(1) provides that the supervising
agency is required to make appropriate information (including those
facts provided to the State Police summarized above), to “any
person upon request.”
Under certain circumstances, the Oregon State Police,
county sheriff or city chief of police are authorized to notify
the public that a person is a predatory sex offender if the offender
is no longer supervised.
ORS 181.586 provides for notice by the supervising
agency (e.g. State Board of Parole, Department of Corrections, etc.)
to “appropriate persons” when an individual on parole
or certain other types of supervision, has been determined to be
a predatory sex offender. The term “appropriate persons”
include, among others, “residential neighbors and churches,
community parks, schools, convenience stores, businesses and other
places that children or other potential victims may frequent”
as well as any “prior victim of the offender.” Notification
may include the offender’s photograph, their name and address,
a physical description, including age, height, and weight, type
of vehicle the person is known to drive, and other information,
including the name or telephone number of the person’s parole
and probation officer.
What does all this mean to Realtors®? Are they
required to disclose the presence of registered sex offenders in
a residential neighborhood? ORS 696.880 provides that nothing in
the sexual offender notification laws, and nothing in the licensing
obligations for real estate agents, creates an obligation on the
part of a licensee to disclose to a potential purchaser of residential
property that a convicted registered sex offender resides in the
area. Essentially what this means is that the failure to disclose
such facts to a purchaser cannot provide the basis for legal action,
since there is no affirmative obligation to disclose the information.
As surprising as this seems, what the statute does
not say is noteworthy. It does not say that information regarding
the proximity of a registered sex offender may not be voluntarily
disclosed, if known. Moreover, it does not say that if asked, a
licensee may lie to the potential purchaser and deny the existence
of a sex offender who lives nearby. Registered sex offenders are
not members of any protected class, so disclosure in most cases,
would not constitute a violation of any Fair Housing laws.
It is hard to argue that most potential purchasers would not want
to know if there was a registered sex offender in the neighborhood.
But the problem is, if a licensee is asked about the presence of
known sex offenders, he or she may take on additional liability
if they undertake to investigate the matter and give erroneous information
to the purchaser. Just because the law says that there is no obligation
of disclosure, does not mean that it is permissible to give out
wrong information.
Rather, there seem to be two instances in which ORS 696.880 squarely
applies: (1) Where the licensee does not know and does not check,
or (2) Where the licensee knows but does not disclose. In both of
these cases, ORS 696.880 should protect the licensee from liability.
It would also seem that there are two instances in which liability
could be created, notwithstanding ORS 696.880: (1) Where the licensee
knows of the presence of a sexual predator in the neighborhood,
but denies it when asked by the purchaser, or (2) Where the licensee
does not know either way, makes an inquiry, and gives the purchaser
erroneous information.
Because ORS 696.880 only seems to protect real estate agents, and
not their sellers, ORS 93.275 was created. This statute contains
a list of conditions affecting real property deemed not material
to the transaction. Subsection (1)(d) addresses “The fact
or suspicion that a convicted sex offender registered under ORS
181.595, 181.596 or 181.597 resides in the area.” While this
statute creates an added layer of protection to real estate agents
as well as sellers of residential property, it does not –
in my opinion – authorize affirmative misrepresentations or
excuse the dissemination of erroneous information. Much like 696.880,
which simply says that real estate licensees have no disclosure
obligation, ORS 93.275 seems to reach the same result by saying
that the information is “not material.” Accordingly,
so long as the buyer does not ask, it appears that both seller and
agent are not required to disclose.
Of course, these statutes shielding homeowners and sales agents
from liability could raise certain fiduciary duty dilemmas, say,
where the listing agent knows there is a sexual predator in the
neighborhood, but the seller instructs him/her not to disclose it
to potential buyers. Since the agent is duty-bound to be obedient
to the instructions of the principal, it would seem that the request
would have to be honored. The only alternative would be for the
listing agent to withdraw from representation. But this is a far
better alternative than to disobey the seller and create the risk
of civil (and perhaps licensing) liability if a sale-fail results
from the unauthorized disclosure.
To some degree, how Realtors® deal with sexual predator issues
is a matter to be determined by each licensee’s own company
policy. However, as with so many other areas in which Realtors®
are not required to be experts, it would seem that the safest course
of action is for licensees to encourage their clients to personally
go directly to the sources where such information may be obtained.
Generally, this means checking with the local and state police,
thoroughly searching public information on the Internet, and inquiring
within the neighborhood itself. Since potential liability to a licensee
can be so great if one gives their buyer-client erroneous information,
this is one situation where purchasers should be encouraged to do
their own homework. It also eliminates the ethical dilemma that
accompanies nondisclosure, since neither ORS 696.880 nor ORS 93.275
prohibit real estate agents from affirmatively recommending that
their clients exercise high due diligence on the sexual predator
issue.
© Copyright 2003. Phillip C.
Querin, Davis Wright Tremaine. No part may be reproduced without
the author’s express written consent.
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