Tuesday, October 14, 2008

Keeping sexual material away from sex offenders (2 of 2)

Continued from yesteday's discussion of State v. Bahl:

Bahl was convicted of rape and burglary, and his sentence included community custody for life, with the following conditions:
  1. Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer (CCO).
  2. Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising CCO and therapist except as provided for therapeutic purposes.
  3. Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.
(The "except as provided for therapeutic purposes" is a nice touch. One imagines the corrections officer providing a copy of The Joy of Sex to teach the offneder about healthy sexuality, or perhaps a masturbation device to sate his lustful urges. Not likely, though.)

The Washington State Supreme Court ruled that the pornography and "sexual stimulus material" conditions were unconstitutionally vague, and must be revised. It noted that several other courts have invalidated conditions prohibiting "pornography," on the ground that the term has no clear meaning; it is, said the court, "entirely subject" and "inherently vague." It could include anything from Playboy to the works of the Renaissance masters. To make matters worse, the CCO has unfettered discretion to "direct" what is included. Ironically, the court contrasted "pornography" to the narrower "obscenity," which (supposedly) has a "precise legal definition."

Bahl argued that the term "sexual stimulus material" in the second condition is similarly vague, and that it too improperly delegates authority to define the term to the CCO and therapist. The court did not explicitly agree or disagree, but instead said that it was too vague because Bahl has not been diagnosed with any "deviancy" and thus could not know what material might be thought to stimulate his "particular deviancy."

The court found the adult business condition permissible, reasoning that it was a flat ban on visiting "adult bookstores, adult dance clubs, and the like." Unlike "pornography," there is a state statute specifically defining what is "sexually explicit." One judge disagreed, saying it was not clear whether Bahl was prohibited from "shopping for lingerie at the local mall," "perusing a collection of Playboy magazines," or "attending a Karen Finley performance."

The court did not say what might be permissible on resentencing, though one judge opined that it would be okay to substitute "sexually explicit material" for "pornography." The court appeared to implicitly accept that imposing broad restrictions on a released offender's access to sexual materials was permissible, so long as the limitations are clearly defined.

Notably, though, the court did not discuss how far the meaning of "establishments whose primary business pertains to sexually explicit or erotic material" could reach. Can a telephone or Internet service be such an "establishment"? If applied to the Internet, would it sweep in such diverse things as porn and cam sites, "adult" dating sites, and sites providing explicit information about safer sex and sexual health?

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