Tuesday, June 09, 2020

Restricted Access to Any Sexual Material OK Due to Individual Assessment of Defendant

US v. Van Donk: Van Donk was on supervised release arising from a conviction for possession of child pornography. Through several violations and revocations he had always been required to participate in sex offender counseling and avoiding various forms of sexually explicit material. His most recent violation (and revocation) resulted in the district court imposing a condition that Van Donk abstain from child pornography specifically (after the parties agreed that a blanket ban on pornography would be too broad). However, it also required him to continue sex offender counseling with a provider, who testified at the revocation hearing, which required Van Donk to abstain from any pornography (she claims that pornography "isn't healthy" for anyone), which she defined to include "anything that aroused [Van Donk] enough . . . even a scene in a mainstream movie or television show." Thus, while the pornography condition itself was narrowed, Van Donk's requirement that he complete the sex offender program also required him accessing any kind of sexually explicit material. While this appeal was pending, Van Donk was released from prison back to supervised release, was discharged from the sex offender program, and for that (and other) reason was revoked and returned to prison once again.

On appeal, the Fourth Circuit affirmed the treatment condition, which included the broad ban on sexual material. After concluding that the appeal was still ripe, even though Van Donk was no longer in the sex offender program (he might be in the future), the court first held that the requirements of 18 USC 3583(d) for imposing special conditions of supervised release applied to the treatment program's pornography ban. The court pointed out that a treatment plan could not order a supervisee to do something that the court could not (it's example - learn to ride a unicycle!). Next, the court found that the condition was not unconstitutionally vague because, unlike general conditions dealing with pornography or sexually explicit materials, this condition came from a treatment program and was part of a dialog with Van Donk during his treatment. Therefore, there was no danger that he was unaware of the materials he was forbidden from accessing. Next, the court rejected an overbreadth challenge, holding that a condition that meets the requirements of  3583(d) could not be overbroad. Finally, the court held that the district court did not improperly delegate its function to the treatment program because it was the court, ultimately, that would conclude if Van Donk violated the conditions of his supervised release.

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