State v. Bahl

J.M. Johnson, J.

¶59 (concurring) — The majority holds that a community custody condition that prohibits Eric G. Bahl from “possess [ing] or access [ing] pornographic materials” is unconstitutionally vague because the standard is determined “as directed by the supervising Community Corrections Officer.” 1 Clerk’s Papers (CP) at 28. Although I agree that this particular condition is vague as written, I write separately to emphasize that a properly crafted community custody condition restricting Bahl’s right to access sexually explicit materials on remand would be constitutional.

¶60 A “ ‘defendant’s constitutional rights during community placement are subject to the infringements authorized by the [Sentencing Reform Act of 1981],’” chapter 9.94 RCW. In re Pers. Restraint of Waggy, 111 Wn. App. 511, 517, 45 P.3d 1103 (2002) (alteration in original) (quoting In re Pers. Restraint of Caudle, 71 Wn. App. 679, 683, 863 P.2d 570 (1993) (Sweeney, J., concurring)). In addition to requiring the imposition of certain community custody conditions, the Sentencing Reform Act of 1981 grants sentencing courts the authority to impose “crime-related prohibitions.” RCW 9.94A.700(5)(e).

¶61 The majority declares that the sentencing court may impose special conditions that “restrict [ ] the material [Bahl] may access or possess, but the restrictions implicating his First Amendment rights must be clear and must be reasonably necessary to accomplish essential state needs and public order.” Majority at 757-58. In this case, the trial court imposed a special condition restricting Bahl’s access to pornography because of “concern about the circumstances of [Bahl’s] crime, which showed him to be egregiously unable to control himself when in a state of sexual stimulus.” State v. Bahl, 137 Wn. App. 709, 715, 159 P.3d 416 (2007).

¶62 Although the majority points out that “the term ‘pornography’ . . . has never been given a precise legal definition,” majority at 754, and that conditions restricting the possession of pornographic materials have often been struck down as vague, specific prohibitions on access to sexually stimulating material have frequently survived vagueness challenges. E.g., State v. Smith, 130 Wn. App. 721, 725, 123 P.3d 896 (2005), review denied, 157 Wn.2d 1026 (2006) (upholding a condition of community placement prohibiting the defendant from “‘purchasing], owning], possessing] or [perusing] any pornography, catalogs or material which can be read or viewed for sexual gratification’ ” and which “ ‘involved children’ ”); United States v. Simmons, 343 F.3d 72, 77 (2d Cir. 2003) (upholding a condition of supervised release prohibiting the defendant from “ ‘possessing] or viewing] any pornographic material, including videotapes, films, magazines, books and photographs’ ” and from “ ‘subscribing] to “adult-only” movie channels’ ”); United States v. Phipps, 319 F.3d 177, 192-93 (5th Cir. 2003) (upholding a supervised release condition prohibiting defendant from possessing “ ‘sexually oriented or sexually stimulating materials’ ”); United States v. Rearden, 349 F.3d 608, 619 (9th Cir. 2003) (upholding a special condition prohibiting defendant from “possessing] any materials depicting sexually explicit conduct as defined in 18 U.S.C. § 2256(2)”).

¶63 “Sexually explicit” is broader than “pornographic.” See United States v. Loy, 237 F.3d 251, 264 (3d Cir. 2001) (“[W]e could easily set forth numerous examples of books and films containing sexually explicit material that we could not absolutely say are (or are not) pornographic.”). Perhaps, ironically here, the broader term “sexually explicit” has proved easier than “pornographic” to define and thus may presumably be utilized on remand. In fact, the majority, in upholding a different special condition prohibiting Bahl from “frequent[ing] establishments whose primary business pertains to sexually explicit or erotic material,” 1 CP at 28, specifically finds the term “sexually explicit” not unconstitutionally vague. Majority at 760. The majority correctly notes “sexually explicit” is statutorily defined under RCW 9.68.130 (making unlawful to display sexually explicit material on a viewing screen that is “easily visible from a public thoroughfare, park or playground or from one or more family dwelling units”) and under RCW 9.68A.011(3) (defining “sexually explicit conduct”).

¶64 Mr. Bahl should be familiar with such a restriction from his incarceration. The Department of Corrections (DOC) also has a mail policy prohibiting inmates from sending or receiving mail that is “sexually explicit.” DOC Policy 450.100 (Mail for Offenders). The policy also provides a definition of this term.

¶65 In my view, a condition restricting a person under community supervision from possessing or accessing “sexually explicit” materials, as defined in a particular statute or the DOC policy, would likely survive a vagueness challenge. The DOC definition of “sexually explicit” seems especially helpful in providing adequate notice because persons under community supervision are already familiar with what materials they can and cannot have.

¶66 In Loy, a Fifth Circuit case on which the majority bases a significant portion of its opinion, the court struck down a supervised release condition prohibiting the defendant from possessing “ ‘all forms of pornography, including legal adult pornography.’ ” 237 F.3d at 253. The Loy court clarified, however, that it “in no way mean[t] to imply that courts may not impose restrictions on the consumption of sexually explicit materials by persons convicted of sex crimes” and that “there is no question that the [court] could, perfectly consonant with the Constitution, restrict [an offender’s] access to sexually oriented materials, so long as that restriction was set forth with sufficient clarity and with a nexus to the goals of supervised release.” Id. at 266-67.

¶67 Conditions of community custody are meant to “[p]rotect the public” and to “[r] educe the risk of reoffending by offenders in the community.” RCW 9.94A.010(4), (7). Bahl has shown that he has difficulty controlling himself when he is sexually stimulated. A special condition prohibiting his access to sexually explicit material furthers the purposes of the Sentencing Reform Act of 1981. Although Bahl and other persons convicted of sex crimes might find such a condition to be restrictive, this limited proscription is clearly preferable to total confinement in prison. Because the sentencing court on remand may craft a community custody condition restricting Bahl’s access to sexually explicit materials, I concur.