Federal Appeals Court Holds “Significant Romantic Relationship” Unduly Vague; Overturns Penile Test As Release Condition

The United States Court of Appeals for the District of Columbia Circuit has held that certain conditions cannot be imposed on a released convicted sex offender.

The opinion was authored by Senior Circuit Judge Sentelle

Appellant Brandon Rock was sentenced to 172 months’ imprisonment and 10 years of supervised release after pleading guilty to distribution of child pornography. He appeals the length of his sentence and the conditions of his supervised release. For the reasons stated below, we affirm his sentence length but vacate two of the release conditions.

Prior to June 2011, appellant Brandon Rock was involved in a romantic relationship with a woman who had an 11-year-old daughter. Rock installed a hidden camera in the child’s bedroom at the woman’s house. Over the course of six months, Rock captured numerous video segments of the child in her bedroom, some of which showed the child completely naked from the front and back. From these videos Rock made still pornographic images. Subsequently, Rock entered an internet chat room where, unbeknownst to him, he began communicating with undercover Metropolitan Police Department Detective Timothy Palchak. Palchak was posing as an individual who had access to a fictional 12-year-old girl.

He was arrested and his computer searched after he sent images to the officer.

He is properly prohibited from computer use but

Another imposed condition of supervised release, the only preserved objection in the district court, under the heading “Additional Standard Conditions of Supervision,” states that Rock “shall notify the U.S. Probation Office when he establishes a significant romantic relationship and then shall inform the other party of his prior criminal history concerning the sex offenses.” Rock argues that this condition should be vacated because such a condition is unconstitutionally vague, not reasonably related to the goals of sentencing, and constitutes a greater restriction on liberty than necessary.

The condition was vague in light of the difficulty in quantifying matters of the heart

We cannot agree with the government’s proposition that people of common intelligence would share a conclusion as to whether the affairs of two people constituted a “significant romantic relationship.” Indeed, we think it likely that in many cases, the two persons involved might not agree as to whether they had such a relationship. In short, we agree with Rock that the vagueness of this condition is problematic.

Finally

Another condition of supervised release imposed upon Rock is that he “shall submit to penile plethysmograph testing as directed by the United States probation office as part of your sexual offender therapeutic treatment.” Rock contends that when the district court ordered him to submit to penile plethysmograph, there was no demonstration of what such testing actually required or if it is effective, and no discussion of why it is necessary.

The court concluded that the testing was not appropriate

The dissenter [in an earlier case] would have stricken the penile plethysmograph testing condition on the grounds that the procedure “implicates significant liberty interests and would require, at a minimum, a more substantial justification than other typical conditions of supervised release.” Id. at 566. We agree with the Malenya dissent and order this condition vacated as well.

The Malenya decision is linked here. 

Wikipedia describes the test. (Mike Frisch)