11th Circuit says Alabama can’t keep child sex offender from living with son

Bruce Henry, convicted in 2013 of possessing child sexual abuse material, has been barred from living with his son since the boy’s birth in 2021.(CN) — An Alabama man convicted of child sex offenses can live with his son after an 11th Circuit panel Tuesday determined a 2011 state law does not pass constitutional muster.It’s the third recent rejection of Alabama’s Sex Offender Registration and Community Notification Act, which the judges found does not survive strict scrutiny because it fails to narrowly tailor the permanent restriction.“Tailoring is especially important in cases like this one, which involve familial rights,” wrote U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee. “After all, the state has no compelling interest in removing children from parents who are in fact competent to love and care for them.”Bruce Henry pleaded guilty in 2013 to possessing hundreds of files depicting child sexual abuse material. He served nearly five years in prison, was released in 2018 and completed treatment. But in 2019, he violated supervised release by viewing pornography, including images with titles indicating young or teenage females. A federal judge extended his supervision rather than revoke it.In August 2021, Henry’s son was born. The law then barred him from living with his child or, by extension, his wife.“A conviction that qualifies under the act does not alone predict with substantial precision an offender’s likelihood of harming their own child,” Rosenbaum explained. “At its broadest, the act covers some crimes that sustain little to no rational inference that a parent is likely to harm their child … and for at least some of the core conduct the act targets, the sole fact of a conviction is not sufficiently tailored to advance Alabama’s interests in protecting children.”U.S. Circuit Judge Nancy Abudu, a Joe Biden appointee, and U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, joined Rosenbaum on the panel.Tuesday’s decision follows a July 6 ruling by the en banc court that all parents — including those with child sex convictions — retain a fundamental right to live with their children. Rosenbaum authored that opinion as well. Eight judges joined the en banc opinion, but four dissented.Chief U.S. Circuit Judge William Pryor, a George W. Bush appointee, argued the federal appeals court should have described the right narrowly as “the right of a child sex convict to reside with his minor child,” which he said is not fundamental. The majority, he said, “shirk[ed] its judicial duty” by refusing to uphold the statute under rational basis review.The majority in the en banc opinion emphasized “the law offers no escape hatch whatsoever.” The panel Tuesday repeated that the act “prevents covered offenders from living with their children ‘regardless of the opinion of experts, lay persons, and the trial court.”At the lower court, U.S. District Judge R. Austin Huffaker, a Donald Trump appointee, blocked the law in January 2024. Last year, an 11th Circuit panel — also Rosenbaum, Abudu and Wilson — found Henry’s parental rights were violated but lifted the injunction. The full court then took the case, limited the question to whether applying the ban to Henry violated substantive due process, answered “yes” on the existence of the right and sent the tailoring question back to the same panel.Attorneys representing parties in the case did not immediately return requests for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads