What is Faith’s Law?
For the uninitiated, Faith’s Law is a relatively new option in Illinois when it comes to child custody matters. It was created in response to the large number of custodial parents who were abusing, neglecting or even killing their minor children, and in the wake of the 2009 death of Faith Green. Faith was a 3-year-old little girl who had previously been removed from her mother’s care due to a substantiated report of neglect, but subsequently returned to her mother’s custody by the Department of Children and Family Services (DCFS).
After this prior removal from her mother’s care, Faith Green was placed with her maternal grandparents. However, DCFS eventually returned custody of Faith to her mother’s care – under a house arrest order, no less. When Faith’s mother failed to comply with all aspects of the house arrest order, DCFS once again intervened. But this time, DCFS granted Faith’s mother limited personal freedom and did not further supervise her other than requiring her to either work or attend school regularly.
Unbeknownst to DCFS, Faith’s mother entered into a relationship during this period with a registered sex offender – someone with a long history of sexual offenses, which included convictions for assaulting children that dated back over twenty years. Despite these offenses, DCFS issued Faith’s mother an emergency permit – allowing her to take Faith for a two-week trip that her mother described as a "family getaway."
While on this trip , Faith Green’s mother chose to drive away from state lines with her daughter – and towards the home of her registered sex offender husband. She completely ignored DCFS’ instructions that Faith and her mother could not travel outside of a four-county region in the Chicago/Northwest Indiana area.
When Faith and her mother arrived at the registered sex offender’s home, Faith’s mother signed her into sex offender’s house under an assumed name, warning the sex offender that Faith was not allowed to be out of her sight. Six hours later, Faith was dead. She had been sexually assaulted and then murdered by her mother’s husband.
In the wake of this horrible tragedy, the state of Illinois passed Faith’s Law – making it so that any parent or other person responsible for the care of a minor who is the subject of certain criminal offenses, including sex offenses which result in prison sentences, may be barred from having custody of that child. Data supports the fact that a parent who has been convicted of certain sex offenses is more likely to abuse a child in his or her care than one who is charged with or convicted of other crimes. A study published in the Journal of Interpersonal Violence in 2010 supports this fact, opening the conversation to the possibility of creating a law like Faith’s Law.
We do not intend for this introduction to give too much away – the body of this post is made up of a series of frequently asked questions regarding Faith’s Law, what it means to Illinois families, and how it was intended to protect the rights of victims of abuse. We are providing it merely for the purpose of letting you know what questions we will answer later in this post.
The Main Components of Faith’s Law
Faith’s Law contains several new provisions, as well as changes to existing Illinois statutes. The following is a brief explanation of some of the key provisions of the new law:
- Section 15; the requirement that all State employees report knowledge or belief of child neglect or abuse, now includes law enforcement personnel and school employees.
- Section 25.5; the definition of "intimate partner" as "individuals who without cohabitating or having ever cohabited, have lived together or been in a relationship of a spouse, romantic partner, or intimate friend."
- Section 25.25; "parenting time" is defined broadly as "the time when an individual has superior physical control over the child. Parenting time does not require overnight stays with the child or children." This section redefines a common term that has been used to limit parenting time with a non-custodial parent and could include in-home parenting time, where the child is visiting the opposing party’s home, as part of his/her time with the child.
- Section 35; requires the Judge to consider the history or pattern of behavior where one party is alleged to be the victim of violence (physical or sexual) as either a victim of battery, by an intimate partner, or a victim of sex offense as defined under Illinois law.
- Section 35.5; revises the definition of "abuse" to include placing another person in fear of physical, mental, harassment or intimidation of a physical nature that causes bodily injury to the other person, an individual residing with, under the care custody or guardianship of the other party or the property of either or a child of either party or an individual residing with either party or the property of either party.
- Section 50; expands the definition of a "sexual assault crime" to include offenses listed under the Illinois Criminal Code such as aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, criminal sexual abuse, aggravated stalking, aggravated kidnapping, aggravated criminal sexual assault, vehicular hijacking, aggravated vehicular hijacking, or any attempt to commit any of the aforementioned crimes.
- Section 60; requires a court to treat a violation of a custody order causing physical harm to the child as a specific factor which creates a rebuttable presumption that joint custody would be detrimental to the child.
Working with Survivors Under Illinois’ Faith’s Law
Survivors of abuse or violence in Illinois will benefit from the "New Act" and Faith’s Law. When survivors seek treatment for their injuries under the provisions of The New Act, they will receive coverage whether they were injured on their first E.R. visit or their fifth visit. There are no caps under The New Act, which are beneficial to survivors who have suffered severe, permanent and painful injuries as a result of the crime.
Faith’s law was designed to combat what caused many severely injured survivors to be denied coverage – the emergency room was not able to quickly ascertain that the cause of the injuries were because of their attack. Sometimes the medical provider was not able to determine that the attack was serious. Many medical providers are hesitant to report a crime, or unsure about what documentation is necessary to report a crime under the Crime Victims Compensation Act. This has led to some medical providers denying coverage, something that Senator Stadelman and Governor Rauner are trying to change by eliminating the current threat survivors of violent crime face when needing medical treatment.
The New Act provides an enhanced resource for coverage to survivors of injured people who seek treatment for their injuries as a result of their attack. Autopsy coverage, burial/funeral coverage, medical coverage, as well as criminal injuries compensation coverage are all important protections survivors will benefit from under The New Act.
Impact of Faith’s Law to Offenders
Faith’s Law imposes rigid new obligations on offenders convicted of certain sex crimes in Illinois. Under this law, offenders (after serving their prison sentences) must submit to mandatory post-release supervision and must register with local law enforcement agencies, as well as register with the State Police Sex Offender Registry (SOR). Further, offenders must register their "Internet identifiers," any electronic mail address, instant messaging, chat or other name they may use in internet communications. These provisions echo prior laws requiring sex offender registration, but include website addresses and other Internet-based portal mechanisms as updates to existing law.
Offenders who fail to indicate their Internet identifiers are subject to criminal prosecution and punishment. As with other provisions of the law, the penalties for mishandling identifiers is severe: conviction of a violation can result in a Class 1 felony for a first offense or Class X for subsequent offenses, both resulting in lengthy sentences and registration as a sexual offender.
The requirement for mandatory sex offender registration has been expanded. Offenders now must register with law enforcement in any jurisdiction where they live or are "domiciled," or where they regularly visit or where their employment is located. These requirements exist even if the offender’s home jurisdiction is not the site of their sexual offense. Failure to register in such a "foreign" jurisdiction constitutes a Class 3 felony, with repeated violations resulting in felony Class X consequences.
The consequences for failing to register and for failing to disclose Internet identifiers are severe, and reach far beyond the usual exposure to a low level felony charge. The law imposes a two week jail sentence and a $1,500 fine for first offenders; subsequent violations are punished as felonies of class X. Under the law, these charges are non-probationable and result in mandatory periods of incarceration (shorter periods are available for first time violations, longer periods for subsequent violations).
Faith’s Law Implementation and Enforcement Issues
There are two common implementation and enforcement challenges for almost any new legislation signed into law. This is no exception. First, it’s going to take a while for all the new parameters contained in the statute to be understood and for hopefully new procedures and methods of enforcement and prosecution to be developed. This is not something that’s going to happen overnight, or even in a few weeks. While the statute took effect immediately upon Governor Rauner signing it into law, the true interpretation of the law, its nuances, operative provisions and the best practices for working with it and enforcing it all have yet to be determined. It’s likely that it will take many months before state’s attorneys and other law enforcement professionals are comfortable with working with the statute.
Second, in addition to government enforcement challenges, businesses that work with or handle children have challenges of their own. It’s not clear what exactly an "inquiry" will consist of, though checking a language box clearly isn’t it. Moreover, it’s pretty unlikely a blanket 1-page form will suffice other than for the most obvious of circumstances, such as sex offender registries and background checks for particular professions such as law enforcement, teachers or daycare workers.
Due to the nature of the inquiry, it will likely be one that comes back with many follow up questions, and a lot of additional information that may need to be researched as well. For example, if a person is listed in the National Sex Offender Registry, but they work in other states and never once operated a business in Illinois , it’s unclear whether even a question about their sex offender status will trigger anything. If somebody gives an address outside of Illinois, they may have no Illinois-based convictions or any prior history that would even be on the radar of Illinois enforcement officials. Similarly, even a question about "willingness" to submit to a background check and identification checking is ambiguous and may not cover all circumstances, such as what happens if there is an issue with the results of a background check.
Staff may have to verify information for themselves to a greater extent as well, depending on the diligence of the employees providing similar information to the business. For large companies dealing with thousands of applicants, this could mean a lot of time spent verifying who people are. As my colleague Julie Tappendorf notes on the Municipal Minute blog, "From a policy standpoint, this new provision seems to require additional business practice by the employers to ensure that volunteering or failing to volunteer a particular language box doesn’t give rise to a forfeiture. The new law doesn’t really explain how a language box can be ‘volunteered’ other than the statement that ‘checking the box does not necessarily preclude an employer from checking references and conducting a background check.’" The best way to ensure compliance is to have a separate form or language included on any application stating that they will not face any adverse consequence if they do not check a box that is set up to draw attention to any information the employer is looking for.
Ultimately, the new requirements under Faith’s Law leaves employers with – at a minimum – more questions than answers.
Public Critiquing Faith’s Law
While Faith’s Law has seen in increase in public support as the law has gone into effect, criticism has also come from within the body of people who deal with these visits on a regular basis. Family and Children’s Services in Cook County has released a written statement critical of the law stating: "On Sept. 19 Illinois lawmakers passed legislation code-named ‘Faith in the Family’ to facilitate religiously-based home schooling of children removed from their families. The passing of this law raises serious concerns for the safety of all the children in Illinois. Faith is not a substitute for a full and complete Child Protective Services investigation. Thus, this law in its current form places non-offending parents, teachers, school systems, foster care, and the public at risk of a child predatory or possible abduction." The criticism of the law, in its entirety seems to center around the law allegedly providing parents with an unfair procedural advantage to keep their children with them, even if they have been accused of abuse or neglect. Other stakeholders feel that the law is a reflection of the ability of Faith to publicize a cause to the public at large, and raise a rallying cry for reform to ensure that children are safe during court ordered supervised visits, regardless of the availability of staff and facility resources.
Future Considerations and New Developments
As is often the case with new laws, Faith’s Law is subject to potential changes and amendments as its provisions are interpreted and applied. Future developments such as additional court rulings, administrative interpretations, and broader policy discussions may result in clarifications and refinements of these issues. For example, a recent challenge to a different aspect of the statute – not the one detailed above – was dismissed for lack of standing (Parents Involved in Community Schools v. Ill. State Bd. of Ed., No. 08 C 1332, 2009 WL 2905786 (N.D. Ill. Sept. 9, 2009)). Nevertheless, it remains to be seen how and whether that decision will apply to challenges in future cases .
With the standard now codified in particular detail in both the Civil and Criminal Codes, those who have some experience with Illinois law will have a familiar roadmap to follow in determining their duties under the statute even as it continues to evolve. Likewise, legislators and interested members of the public can examine the statute’s protection of both religious and non-religious organizations to see how it might serve as a model or reporting guide in other areas, such as bullying. Finally, And the nearby states of Iowa and Wisconsin are worthy of particular note, as they are draft states for the model legislation discussed above, based on the Quiet No More project. It is unclear how Wisconsin will interpret and apply Faith’s Law, or what it might look like in Wisconsin or other states in the coming years.