“Participation” In Treatment Program Doesn’t Require Flawless Compliance With Program Rules

US v. Cohen: In 2016, Cohen was convicted of distributing child pornography. As part of the transfer of his term of supervised release to South Carolina, Cohen agreed to new conditions of release that prohibited him from possessing “sexually explicit conduct” and that he “participate in a sex offender treatment program.” While on supervision, Cohen’s probation officer learned that he had been exchanging pictures with a woman of a sexual nature. When the probation officer told the treatment provider of this, the provider responded that it violated program rules and “would be raised at an upcoming group therapy session.” The district court nonetheless determined that Cohen had violated his terms of supervised release and revoked his supervision.

The Fourth Circuit affirmed in part and vacated in part the district court’s revocation order. First, the court concluded that the district court had erred by concluding that Cohen had violated the condition that he participate in a treatment program by simply violating the rules of the program. Someone can “participate” in a program even while violating its rules, pointing to the provider’s statement it would address Cohen’s conduct in group therapy, which “assumed Cohen’s continuing participation.” Second, however, the court held that the revocation of Cohen’s supervised release on the ground that he possessed images of “sexually explicit conduct,” concluding that “these specific pictures – exchanged in the context of a sexual conversation with no conceivable other purpose – were designed to titillate their recipients.” Thus, the court did not ultimately vacate the revocation itself. However, the court did agree with Cohen that a newly imposed special condition on accessing certain images was overbroad, as it “covers seemingly any visual or written medium in which any person” is nude or engaged in sexual activity, which would, among other things, “counsel strongly against ever turning on HBO.” Thus, the case was ultimately remanded to address that particular condition.

Congrats to the Defender office in South Carolina on the win!