2nd DCA: Penthouse magazine does not warrant violation of probation.
Florida’s 2nd District Court of Appeals reversed and remanded a the probation violation of a man who was caught with a Penthouse magazine.
George Bryan was charged with violating his probation and lying to his probation officer. He was on probation for the underlying offense of possession of child pornography. One of the conditions of his probation (and a special condition of MOST individuals who are on probation for a sexual offense was, “That he shall not view, access, own or possess any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the defendant’s deviant behavior pattern. [F.S. 948.30(1)(g)].”
After finding a Penthouse magazine (a legal magazine that you must be over 18 to purchase and that only depict images of people over 18) in the trunk of his car, his probation officer sought to violate his probation for lying to him by not disclosing this in his polygraph and for having the magazine. A trial court violated him and he appealed.
The appellate court reversed the violation (consistent with decisions from the 5th DCA) and remanded it back to the trial court. The court focused on the language, “that are relevant to the defendant’s deviant behavior pattern“. A legal adult magazine is not relevant to illegal CP.
The decision can be found here: https://www.2dca.org/content/download/633482/7197820/file/192331_DC13_04082020_085444_i.pdf
Will this set precedence for future CP cases in regards to this specific violation? I’m surprised at how sensible this reversal is. When I think about it that would be like violating a drug offender for having cough syrup in his trunk…
It does not appear to set any precedent except that probation officers should be careful not to be sloppy in their violation affidavits. Those on sex offender probation should not look at Penthouse if their conditions don’t allow it.
I would guess that the term “relevant to the defendant’s deviant behavior pattern” will be scratched out of all future probation terms, and likely edited out of existing ones at their first chance.
If you are on probation for a sex offense, this case likely does not apply to you. You should NOT possess Penthouse if your judge or statutory probation conditions did not allow it. Do NOT count on your probation officer and trial court to get sloppy, as happened here. Read the opinion carefully.
The guy almost did TWELVE YEARS for this violation, it is still remanded to the trial court, and we don’t know yet what the final outcome will be.
I’m in complete agreement with you Jacob. Use wisdom and act responsibly and you’ll make it through.
This person will end up paying for his indiscretion either through time locked up or in $ to his lawyer, or perhaps both. Stay inbounds and any contentions of a violation can be better defended against. I had a false accusation leveled against me by probation and I prevailed (without needing a lawyer) because I was in the right. It was unjust and I am still dealing with bitterness over it years later, but thankfully I’m free and don’t have to answer to capricious LE officers any longer.
Guessing the judge will give him the same sentence based on 9 alone. Judges almost never rule against their own POs, regardless of circumstance, because they’re more worried about undermining the PO than they are about being fair and honest.
One problem is that RSOs are kept off mainstream social network sites such as Facebook. RSOs are required to disclose online identities to police and police turn names in to Facebook. RSOs then do not have access to their families and supportive friends. Churches have bastardized their doctrine to include state mandates to adopt sex-offender policies that alienate RSO from church in conflict with actual biblical doctrine. RSOs are only left with the ability to join fringe, sex oriented groups, the only people accepting of them. It makes sense that RSOs without the ability to get advice from a church or family turn to Penthouse magazine. Perhaps Penthouse runs articles to help people with an addiction to pornography deal with their problem. Someone seeking that advice ends up going to prison for trying to help himself in the only way available to himself.
Good! No matter what we may have done criminally, no other human being has the right to try to dehumanize us and de-sexualize us.
Probation officers (males that is) are just as sexually motivated and foul mouthed as any typical person.
I have SEEN probation officers GAUK at women on the streets with big butts. When the officers would leave the building to go across the street to the pizzeria for their lunch breaks, I’d see them gauk and stare at random women passing by.
If we had a way to tap into the THOUGHTS in people’s minds, there’d be a lot of “professionals” and LE agents being locked up.
well lets see here the guy has a offense hes not on line looking for a good time
at home reading a magazine if he has a real addiction or some Issues of sexual deviance and you take the only way for him to satisfy his issues
whats left?
yea go out and re-offend
makes lots of sense here dont it
about like probation restriction of no alcohol
yet they violate the poor bastard for using mouth wash
I’m reminded of a point I’ve repeatedly made at my stupid “treatment” group:
Porn consumption has risen exponentially since the internet came about. Has the rate of sex crime – overall or by those with priors – risen proportionately, or at all? Not by any of the studies, reports, and statistics I’ve seen. If someone can link to something showing otherwise, please share it.
Hardcore registry nazis apparently think re-offense by registrants is inevitable. If so, then how is it possible for porn consumption to “increase the risk” of re-offense? Is there anything beyond supposition or “common sense”** to support the notion? Not that I’ve seen. To the contrary, adult porn is encouraged in the treatment of actual, competently diagnosed (as in, by a psychiatrist as opposed to a court) pedophiles, from what I could find.
I’m not for or against porn use – I couldn’t care less either way. I am, however, very much against the criminalization of thought. No matter how disturbing a person’s thoughts are, there’s no crime as long as those thoughts stay in his head and he doesn’t act on them. Otherwise, we should be locking up guys like Quentin Tarantino and Stephen King.
** I think it’s very important to distinguish “common sense” from popular opinion. At one time it was “common sense” that the world is flat and that the sun revolved around it.
Prior to the internet, child pornography had been nearly eradicated. But the internet ushered in an explosion in such material. And for those who viewed it, many of whom otherwise would not have committed another sex crime, it was internet adult pornography that led them down that path. A ban all porn does not seem an appropriate condition to apply to everybody though, and shame on the FL legislature for exposing a probationer to 12 years in prison on that basis.
@ Jacob:
I respectfully disagree. The idea that adult porn leads to child porn is based on the modern reality of those stupid stings by the FBI, ICAC, and their state counterparts that troll those sites looking for someone to hit. Think about it – when was the last time you’ve read of someone arrested for CP possession that wasn’t from one of those?
I do not and never will buy the notion that a person who goes to adult porn sites or adult chat rooms are somehow child predators. An actual child predator would not be going there; he’d be going to where children are expected to be. And he/she is more than likely NOT on the registry.
Most people who consume adult porn do not move on from that to CP. And not everyone who consumed CP got there via adult porn. So adult porn should only be restricted for those who got to CP that way, and even then for a limited period (such as while in treatment). The problem with making adult porn a standard SO probation condition is the legislature attempting to act as treatment provider.
One size does not fit all.
Adult porn is also considered texts from ones spouse if that is pornographic in nature. Nude pics of oneself is also considered Pornography.
One who is on s.o. probation can be violated, and have been, for both.
Penthouse, Playboy and their ilk are publications protected by the First Amendment. The judge who imposed those restrictions should have considered this established point of law in the first place.
The judge did not bar Penthouse from publishing. Their 1Am rights seem intact to me.
Jacob, I was referring to the first amendment right of a person to possess Penthouse, Playboy, etc., not the right of the publishers to create and distribute their issues.
So it’s a question of whether someone under FL SO probation has a 1st Am right to possess Penthouse. If that’s the case, I’m surprised no one’s challenged FL’s SO probation law on that basis.
I hope this answers your question:
In Kasischke v. State, 991 So.2d 803, 815 (Fla.2008), the Florida Supreme Court examined the statute that prohibits sexual offenders on probation from possessing pornographic or obscene material and determined that “[a]n offender does not violate this condition unless the
obscene, pornographic, or sexually stimulating' material at issue is relevant to thedeviant behavior pattern.'”A few years ago, there was a bill to prevent someone on probation from possessing any pornography but that didn’t fly.
When I was still on paper , about 12 years ago, the FDLE came out with the strict zero tolerance policy, they were violating people, not just for nudie mags, but for having any R-rated move ( well any movie for that fact ) that had ANY nudity in it.
that was just before this lawsuit. I had to go through my movie collection and trash most of them out of fear.
My first PO told me he was going to revoke because I was watching something on Youtube when he stopped by, saying they considered it porn. I called his bluff – turned, put my hands behind my back, and said “Let’s go.” I was (and remain) more than willing to do a few weeks in jail to hear him explain (and the court to likely agree) that Youtube is pornographic. He backed off with a “next time…” warning and the matter never came up again.
Ditto my stupid “treatment” group. They wanted me to sign a pledge to not use the internet for any reason. I refused, saying modern life is impossible without it and it would apply to phones and ATM cards, depending on the extremes they want to take it. They threatened to kick me out and that I’d be revoked. Again, go ahead.
The next week, they modified the pledge to “unauthorized” purposes. I refused again, asking who determines what’s authorized and what isn’t, how do they let me know, and how (and how often) changes are made. No answers, just a claim that it’s only a formality and not that big a deal, just sign it. Again, I refused. Told them if it’s not big a deal to sign, then it’s not a big deal NOT to sign, either. 4 years later, it hasn’t come up again.
I filed grievances against that firm with every mental health organization they belong to for violations of their various codes of ethics and standards of practice last October (held off on complaining to the state licensing board, pending the results). They’ve been fast-tracking me through their stupid program ever since.
Just a guess here…
ITM Group?
Must be the ITM Group. Thats how they play. Kicked me out for “not participating ” bc of my insistence that a detective committed perjury against me at trial. So, I got violated by probation. Now there is a review into that cop’s false testimony. So, we’ll see.
When I was incarcerated in CT in 2006-2008, Playboy/Penthouse was allowed to be purchased (subscriptions) by inmates. I think they started to change that rule around the time I got out.
This is of course due to sex offenders. But here’s something to consider (again); People have been locked up for sexual offenses for decades. What suddenly made the DOC decide to eliminate adult magazines from being allowed in their prisons? It truly makes no sense at all. More fear mongering.
I used to say in “therapy” group that I don’t need to look at naked photos of a female to get aroused, I have an imagination that works quite well. (Needless to say, they didn’t like that comment). Oh well!
‘Lying to a Probation Office’….it is the Reverse…The Fcking PO, Lies, Lies, Lies…..Because, that is how they Justify their Mostly Overweight Existence, to receive their Bi-Weekly Check!..Remember, a State Employee is not responsible for creating Revenue, i.e. sales…they take Tax payers Monies away from the Populous!
I am grateful that the ‘One’ who Lied in Court and Illegally caused state incarceration on Me, is Now Dying a Slow Death…..Karma is a Bitch!
The issue here is “…relevant to the defendant’s deviant behavior pattern…” was written into his restrictions. My question is, is it relevant even it isn’t in a person’s restrictions? I ask because I was charged and convicted with a violation of special conditions of having ADULT pictures on my computer when my crime was against a minor.
Not a lawyer… But,
Was the violation simply for having what was considered porn on your pc or was it because you had not yet attained permission from your treatment provider to view porn. It’s been awhile since I’ve read those conditions.