Can Tennessee make it a crime for a sex offender stepparent to live with a minor by 'presuming' the prior victim was under 13, when the actual age cannot be proven?

Plain-English summary

Tennessee bars sex offenders and violent sex offenders from living with minors. There is a "parent" exception, but for stepparents, the exception only applies if the offender's prior victim was 13 or older at the time of the offense. So the victim's age is an essential element the State has to prove when prosecuting a stepparent.

In 2010, the legislature considered an amendment that would have said: when the State cannot determine the prior victim's age because the victim only appeared as an image in child pornography accessed by the offender, the law would presume the victim was under 13.

Senator Diane Black asked the AG whether this amendment was constitutional. The AG said no. The amendment created what's called a "conclusive presumption," which is the most rigid kind. Once the State proves the predicate fact (image appeared in child pornography, age cannot be ascertained), the jury would be required to treat the under-13 element as proved without the State putting on any evidence about it.

The Due Process Clause of the Fourteenth Amendment forbids that. In re Winship, 397 U.S. 358 (1970), holds that the prosecution must prove every fact necessary to the crime beyond a reasonable doubt. Sandstrom v. Montana and Francis v. Franklin reinforce that a presumption that takes an essential element away from the jury is unconstitutional. The proposed amendment did exactly that.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does Tenn. Code Ann. § 40-39-211(c) actually prohibit?
A: It prevents sex offenders and violent sex offenders from "residing with" any minor (anyone under 18, per § 40-39-202(8)). Violations are Class E felonies under § 40-39-211(f).

Q: Why does the parent exception treat stepparents differently?
A: Tenn. Code Ann. § 40-39-202(11) defines "parent" to include stepparents, but only if the offender's victim was 13 or older at the time of the offense. The legislature drew the line because a stepparent who once victimized a young child is treated as a continuing risk to other children in the household; that policy judgment depends on the prior victim's age.

Q: What's a conclusive presumption?
A: It's a presumption that, once the State proves the predicate fact, removes the presumed element from the case entirely. The jury is not allowed to consider whether the presumed element exists. The defendant cannot rebut it.

Q: Why is that worse than a "permissive inference"?
A: A permissive inference suggests a conclusion to the jury but does not require it. The State still has to convince the jury beyond a reasonable doubt. That is constitutional (subject to a rationality check). A conclusive presumption skips the jury entirely on the presumed element.

Q: What about a "mandatory rebuttable presumption"?
A: Also unconstitutional in criminal cases. Sandstrom v. Montana, 442 U.S. 510 (1979), held that a jury instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts" violated due process because it shifted the burden of disproving intent to the defendant. Francis v. Franklin reaffirmed this.

Q: Could the legislature have written this differently?
A: Maybe. A permissive inference along the lines of "the jury may infer that the victim was under 13 if the State proves the image appeared in child pornography accessed by the defendant and the actual age cannot be determined" would not face the same per-se constitutional problem, though it would still need to satisfy the rationality requirement of Francis v. Franklin (the inference must be one that "reason and common sense" justify on the facts).

Background and statutory framework

Tennessee's sex offender residency restrictions live in Tenn. Code Ann. §§ 40-39-201, et seq. Section 40-39-211(c) is the residential prohibition: no sex offender may reside with a minor. The statute carves out a parent exception (so a paroled offender can live with their own children) but qualifies that exception in two ways. First, the offender cannot rely on the exception if their parental rights are being terminated, or if any minor or adult child of the offender was a victim of a sexual offense by the offender. Second, the parent definition (§ 40-39-202(11)) excludes stepparents whose victim was under 13.

Amendment No. 1 to SB 3697/HB 3370 added a single sentence: if the offender's victim's age cannot be ascertained because the victim's image appeared in child pornography accessed by the offender, the victim is presumed to have been under 13.

The AG's analysis catalogues the three kinds of presumptions in criminal law (citing Francis v. Franklin):

• Permissive inference: suggests but does not compel a conclusion. Constitutional, subject to a "reason and common sense" check.
• Mandatory rebuttable presumption: requires the jury to find the presumed element unless the defendant rebuts it. Unconstitutional under Sandstrom.
• Conclusive presumption: removes the element entirely once predicate facts are proved. Unconstitutional.

The AG read the proposed amendment as a conclusive presumption. The "shall be presumed" language, combined with the absence of any rebuttal mechanism, means once the State shows the image-in-pornography predicate, the under-13 element is treated as established. That violates In re Winship's rule that the State must prove every element beyond a reasonable doubt.

Citations and references

Statutes and constitutional provisions:

• Tenn. Code Ann. § 40-39-211(c) (residential restriction)
• Tenn. Code Ann. § 40-39-211(f) (Class E felony for violations)
• Tenn. Code Ann. § 40-39-202(8) (definition of "minor")
• Tenn. Code Ann. § 40-39-202(11) (definition of "parent")
• T.P.I.-Crim. 10.17(a) (pattern jury instruction)
• U.S. Const. amend. XIV (Due Process Clause)

Cases:

• In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970) (Due Process requires proof beyond a reasonable doubt of every element)
• Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979) (mandatory rebuttable presumptions unconstitutional)
• Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965 (1985) (taxonomy of presumptions; permissive inferences need rationality)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-068.pdf

Original opinion text

May 17, 2010
Opinion No. 10-68

Burden of proof related to sexual offenders residing with minors

QUESTION

Would Amendment No. 1 to Senate Bill 3697/House Bill 3370, if enacted, violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution by improperly relieving the State of its burden of proving every element of the crime charged under the statute?

OPINION

Amendment No. 1 to SB 3697/HB 3370 unconstitutionally relieves the State of its burden of proving every fact necessary for conviction beyond a reasonable doubt, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

ANALYSIS

As presently written, Tenn. Code Ann. § 40-39-211(c) prevents sexual offenders and violent sexual offenders from residing with minors. Violations of the residency and other restrictions set forth in Tenn. Code Ann. § 40-39-211 are punishable as Class E felonies. Tenn. Code Ann. § 40-39-211(f).

Generally, the statute is not violated if the defendant is the "parent" of the minor with whom he or she resides. Tenn. Code Ann. § 40-39-211(c); see also T.P.I.-Crim. 10.17(a). Section 40-39-202(11) excludes from the definition of "parent" any step-parent if the offender's victim was under the age of thirteen (13) at the time of the offense. Therefore, if the defendant is a step-parent and, at the time the sexual offense or violent sexual offense was committed the victim was thirteen (13) years of age or older, § 40-39-211(c) has not been violated, unless the offender's parental rights have been or were in the process of being terminated by law, or any minor or adult child of the offender was a victim of a sexual offense or violent sexual offense committed by the offender. Tenn. Code Ann. § 40-39-211(c)(1) and (2).

Amendment No. 1 to SB 3697/HB 3370, if enacted, would amend Tenn. Code Ann. § 40-39-211(c) by adding the following language between the first and second sentences of Tenn. Code Ann. § 40-39-211(c):

If the age of the offender's victim cannot be ascertained because the victim's image appeared in child pornography accessed by the offender, it shall be presumed that, for purposes of this part, the victim was a minor less than thirteen (13) years of age.

There are three types of presumptions: (1) permissive presumptions or inferences, (2) mandatory rebuttable presumptions, and (3) conclusive or irrebuttable presumptions. Only the first category of presumption, the permissive presumption or inference, is constitutional in the criminal setting. A mandatory rebuttable presumption "requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted." Such a presumption violates due process because it "relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding."

An irrebuttable or conclusive presumption is one which "removes the presumed element from the case once the State has proved the predicate facts giving rise to the presumption."

The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Stated another way, the burden of proving the essential elements of the crime cannot be shifted, nor can the State be relieved of the burden of proving every element of the crime beyond a reasonable doubt.

Amendment No. 1 creates a conclusive presumption. Specifically, according to Amendment No. 1, if the State proves the predicate fact (i.e., the victim's age is not ascertainable because the victim's image appeared in child pornography), the finder of fact would be required to find that the victim was under thirteen (13) years of age. In the case of a step-parent, the application of the amendment would result in an impermissible presumption, as the State would not be required to prove beyond a reasonable doubt that the step-parent's victim was less than thirteen (13) years of age.

Such a result does not comport with the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as it would relieve the State of its burden of proving all of the necessary elements of the offense beyond a reasonable doubt. Consequently, Amendment No. 1 to SB 3697/HB 3370 is unconstitutional.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

TIMOTHY P. HARLAN
Assistant Attorney General

Requested by:

The Honorable Diane Black
State Senator
5 Legislative Plaza
Nashville, Tennessee 37243-0218