Not Your Average Hoosier

What restrictions on online access are appropriate as probation conditions for convicted sex offenders?

The Indiana Supreme Court has the answer

We live in the internet age. The internet, cyberspace, the World Wide Web, whatever moniker you choose, pervades our daily lives. For many, we even carry the internet around in our pockets or purses. Our cell phones provide the gateway into cyberspace’s vast domains. Hoosiers accomplish life’s most meaningful and mundane everyday tasks with cyberspace at our fingertips. We apply for jobs, we file tax returns, we pay bills, we attend college, we read the news, we navigate, we communicate, we shop—all online. To be sure, most Hoosiers don’t think twice about googling the answer to a vexing question, or checking the weather online, or updating their status on social media. And that’s all right—for most Hoosiers. But probationers are not most Hoosiers.

The defendant at age 34 had sexual relations with his 16-year old niece after they had explored incest online. 

This condition was not unconstitutionally vague

You are prohibited from accessing or using certain web sites, chat rooms, or instant messaging programs frequented by children.

The court

Considering Condition 8’s prohibition on “accessing or using certain web sites . . . frequented by children” in the big picture, we understand the term to prohibit using websites that allow Weida to contact or communicate with children. Indeed, a handful of Weida’s probation conditions work together to limit his contact or communication with children through any means, internet included.

… we find that a person of ordinary intelligence, reading all the probation conditions in context and receiving instructions from the court, would understand that Condition 8 forbids him from visiting websites that allow him to contact or communicate with children. Because Condition 8 provides sufficient clarity and particularity to give a person with ordinary intelligence fair notice of what conduct is generally proscribed, we hold the condition is not unconstitutionally vague. 

Nor does the condition impinge on his rights

We find that Condition 8 is reasonably related to Weida’s rehabilitation and protecting the public. When a defendant commits a sex crime against a child, as happened here, it is reasonable to restrict that defendant’s access to children through any medium. Restricted access to children simultaneously helps the defendant avoid temptation and protects the public.

But this condition crossed the line

You shall not access the Internet or any other on-line service . . . without prior approval of your probation officer.

The court

we live in an internet-saturated society. Cyberspace presents the primary conduit for information and communication. Given the importance and prevalence of the internet in today’s world, we must decide when it is reasonable to curtail a probationer’s internet access. Put differently, when is an internet restriction reasonably related to the probationer’s rehabilitation and reintegration into society, and when does it protect the public from future harm?

…Here, the record reveals Weida has no history of misusing the internet or using the internet to perpetrate a crime. However, the record does show that Weida used the internet shortly before committing incest with K.M. He admitted googling explicit photos and showing them to K.M. He likewise admitted viewing an incest website before having sex with K.M. We cannot ignore that when Weida enjoyed unfettered internet access he committed incest. Whether or not he intentionally groomed K.M. for sex, there is no doubt the two went from talking, to looking at sexually explicit material online, to having sex. But Weida’s troubles recognizing sexual boundaries in person and online should not result in a far-reaching, broad internet ban. A more appropriate internet restriction—one that reasonably relates to his rehabilitation and protecting the public—will restrict his access to obscene or sexually explicit material. Such a restriction will assist him in rehabilitating and avoiding enticement to re-offend yet allow him to remain a productive member of our internet-dependent society. He can still look for jobs, attend classes online, pay bills, read news, and otherwise lead a rehabilitated life. We finally note that a narrower internet restriction does not sacrifice public safety since Weida will still be prohibited from accessing material that related to his offense.

(Mike Frisch)