Legal Commentary

Are We ?Significant? Yet?

By Eugene Volokh

From United States v. Reeves, decided today by the Second Circuit:

This appeal requires us to consider the validity of a condition of supervised release [following a prison term for possessing child pornography] that obligated Reeves, upon entry into a ?significant romantic relationship,? to notify the United States Probation Department and to inform the other party to the relationship of his conviction. We conclude that the condition is unduly vague and not ?reasonably necessary? to achieve the objectives of 18 U.S.C. § 3553(a)(2)....

We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a ?significant romantic relationship.? What makes a relationship ?romantic,? let alone ?significant? in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be ?significant.? The history of romance is replete with precisely these blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814); When Harry Met Sally (Columbia Pictures 1989); He?s Just Not That Into You (Flower Films 2009).

Thanks to How Appealing for the pointer....

In addition to being too vague to be enforceable, we are not persuaded that the special condition is ?reasonably related? to the sentencing objectives of 18 U.S.C. § 3553(a), as required by § 3583(d).... We have no doubt that in the appropriate circumstance a court, on the recommendation of the Probation Department, could require a defendant to notify third-parties of risks arising from the defendant?s criminal record, personal history, or characteristics. But the history and characteristics of Reeves?s offense do not indicate that he poses a risk to those with whom he would have ?a significant romantic relationship.? Reeves has two children from two separate relationships and there are no allegations of domestic violence or abuse in any of these relationships. He possessed but did not create or distribute child pornography, and his psychological evaluation noted that he ?does not present with predatory tendencies toward children and test results suggest that he is not sexually attracted to children per se.? Nothing in the record suggests that he has been a threat to a romantic partner. In short, on these facts, we are hard-pressed to see how the notification requirement is reasonably necessary to protect someone with whom Reeves might choose to associate. Nor is it at all apparent that such a notification requirement will promote his rehabilitation. To the contrary, the requirement would almost certainly adversely affect, and could very well prematurely end, any intimate relationship he might develop, placing him at a greater risk of social isolation and thus impair, rather than enhance, his rehabilitation.

Thanks to How Appealing for the pointer.

Full post as published by The Volokh Conspiracy on January 07, 2010 (boomark / email).