Heard about this from my law partner Lia Fazzone, on the Defense Zzone. I always find these decisions interesting. I’ve reprinted her blog below.
The Miami Herald is reporting that
Florida sex offenders on probation can possess pornography so long as it does not relate to an offender’s ”particular deviant behavior pattern,” the state’s Supreme Court ruled Thursday. (Source)
The 5-2 decision overturned a 2006 Third District Court of Appeal ruling on a Miami case in which the appellate court said offenders cannot have any sexually explicit material.
Factually, the Petitioner, Donald Kasischke, pled guilty to three counts each of lewd or lascivious battery and exhibition on a child under age sixteen. He was sentenced to 364 days in prison, followed by two years of community control and eight years of probation. Florida law requires that courts impose several conditions on sexual offenders receiving probation or community control. For example, defendants are subject to a curfew; they cannot live within 1000 feet of certain places, such as schools, where children congregate; and they must successfully complete a sexual offender treatment program. Another condition that must be imposed—the one relevant in this case —is the following:
Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.
The Petitioner’s plea agreement included such a condition. After, he had been released from prison, and while he was serving his community control, a search of his home revealed allegedly “obscene, pornographic, or sexually stimulating” photographs, as well as a pornographic videotape. His community control was revoked and he was ordered incarcerated.
The Florida Supreme Court held that the phrase “relevant to the offender’s deviant behavior pattern” qualifies each of the prohibitions in section 948.03(5)(a)(7), Florida Statutes (1999). An offender does not violate this condition unless the “obscene, pornographic, or sexually stimulating” material at issue is relevant to the “deviant behavior pattern.”
The Contiguglia Law Firm, P.C. 
August 25th, 2008 at 3:45 pm
I find it crazy that Florida sex offenders are allowed to have pornography in their posession! No matter the offense I feel that the sex offender should not be allowed to have any form of pornography. Wouldnt you think that these horrible thoughts are running through the sex offenders mind as they were when they were commiting the crime?
September 6th, 2008 at 6:44 pm
The issue here is not whether a sex offender should be allowed pornographic materials–we all agree they should not; rather, we’re seeing a live illustration of the conflict that can arise from the wording of a statute, and the court’s responsibility to sort it out.
In my (lowly) opinion, the modifier “relevant to an offender’s offense” clearly applies to the entire statute regardless of the medium-and it is the bigger issue, but not the one being decided. As a student, I find it fascinating that we’re not arguing the merits of the issue but, instead, arguing over the “meaning” of a statute based on comma placement! This is an excellent example of how law doesn’t always follow the common sense of the community.
But, I suspect, this decision is going to lead to an amended statute–the Legislature is going to reword the law that disallows any porn for a sexual felon regardless of their “preferences.”
I guess, the short version is that I believe the Court made the best decision they could based on what they had to work with. It wouldn’t be a job I’d want!
September 12th, 2008 at 8:34 pm
”particular deviant behavior pattern,”? Sounds clear enough. In this case the offender should not be allowed to have any“obscene, pornographic, or sexually stimulating” photographs, as well as pornographic videotape. Some say that this is a sickness, I say that it is a behavior issue that is encouraged, especially when we go back on the original decision. He got away with it the first time and if allowed to maintain the same behavior he will do it again. I cannot belive that the tax payers dollars were even considered when wasting time and money trying to maintain his sick and dangerous behavior. In addition these conditions were made on a plea. He could of got the book thrown at him. Instead we allowed the plea, and now we are allowing him more freedom? What was the point of the decision. Decisions like this make the courts look like they have egg on their faces!
September 20th, 2008 at 8:25 pm
The justice system in our United States have fallen apart. If everyone would take a look into history, think about how the criminals were treated, then take lessons from the days of Henry Morgan and others,from the 14th and 15th century, our country would have remained a safe place to raise the generations. At one time the criminal was treated as a criminal after sentence was decided. This is not true today – it has not been true for several hundred years..
September 27th, 2008 at 1:32 pm
Not to be redundant, but porn isn’t the largest issue here. The Court’s responsibility wasn’t necessarily look at the facts of the case but, rather, to evaluate the facts as they relate to the applicable statute. As paralegal (emphasize “legal”) students, aren’t we supposed to analyze the law and apply it to our particular facts? This statute clearly states that porn is OK if it isn’t part of our offender’s “particular deviant pattern.” Our offender’s particular pattern was something so freaky I’m not even sure porn exists for it! (Note: I’m not a porn expert, so maybe I’m wrong).
I think we all agree that’s a ridiculous modifier, but it appears to me that it’s an issue that has to be brought up with the Legislature–not dealt w/by the Court. The Leg often makes BAD LAWS. The challenge wasn’t to the law itself, but it’s application. Someone needs to challenge the law itself before it’ll be changed.
October 19th, 2008 at 5:34 pm
After reading this article, I believe there are several issues to address. The first issue is the First Amendment. Should the legal arena and society presume that felons assert the same rights as those who have not had a run in with the law? Should it be decided that by pleading guilty and/or conviction one’s First Amendment rights should be stripped or altered? Do we as a legal arena or a society have the right to alter the Constitution and define it how we see fit?
The second issue is that of rehabilitation. It has been an ongoing battle as to whether or not it is the responsibility of the Correctional Department to rehabilitate the prisoner. Should the Department spend more time and energy trying to fix the prisoner before reemerging him/her back into society? Are the programs in place working?
It is clear in this particular situation the defendant failed to comply with the stipulations placed on him in his plea agreement. It is also clear having breached this agreement his opportunity for probation was revoked and he was ordered incarcerated. So did this breach occur because of a failure in programs attempting to rehabilitate this prisoner, prior to emerging him into society again? Or did it occur because this defendants First Amendment rights were not altered enough to prevent this breach from occurring?
With these thoughts in mind, one has to consider that Sexual Predators are not seen highly in the public light and have the highest recidivism rate of all offenders. So, maybe the better question is why the Florida Supreme Court would overturn a decision stating no sexually explicit materials are allowed in the possession of the offender to allowing these materials as long as the materials they possess are not “relevant to the offender’s deviant behavior pattern.”
Maybe the answer is as simple as: “What is better for the greater good?” Is allowing these offenders to possess these materials going to prevent them from preying on societies innocent?
October 22nd, 2008 at 12:19 pm
“Florida Supreme Court Approves Porn for Sex Offender”
None of the blogs address the right to sexuality of an adult person and that the FL. Supreme Court might be addressing this in their interpretation of the law.
It seems that once time has been served, a person ought to be able to return to society with all rights reinstated. Because the recidivity rate of sex offenders might be higher than for offenders of other felony crimes, most states have deemed it wise to interpret the right to privacy more narrowly than common. Web sites that publish where released sex offenders live restrict their right to privacy considerably even after having served their time for the crime.
Measures taken to help sex offenders on parole to learn to readjust to life within society are useful but cannot go beyond socialization measures, that is, they cannot transgress into the personal private sphere of an adult, his thoughts, and actions directed at himself when not in public. These are basic freedoms and seem to imply to me the right to be a “sexual being” as long as one does not force ones sexual needs onto others against their will be they minors or adults.
As we, in the so-called “civilized western” societies, do not with the exception of execution for first degree murder, endorse physical punishment corresponding to the crime committed as for example, cut off the hand that stole, we also do not promote castrating sex offenders.
If rehabilitation and reintegration into society of felony criminals is the ultimate goal, then once time has been served, and the individual offender is granted a private sphere, s(he) should be allowed the same degree of privacy granted others within that sphere. Consequently, the possession of “sexually stimulating” material that has nothing to do with the type of sexual offense committed by the offender ought not to be an issue. Being a sexual being is not equal to being a sex offender, nor does it mean that a former sex offender using sexually stimulating material “unrelated to the offense”, will reoffend.
The court held that the language of the statute was ambiguous and that therefore they could not “discover legislative intent” by only relying on the statute’s plain language. The court then proceeded to explore legislative history, as “it is a basic rule of statutory construction that ‘the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.’” (quoting State v. Bodden, 877 So. 2d 680, 686 (Fla. 2004)(court’s opinion, p. 8)
As a result of analyzing the history of the statute, the court concluded that the 1997 amendments to the 1995 version of the statute narrowed its scope in that it added the language now under discussion: “…that are relevant to the offender’s deviant behavior pattern.” Ch. 97-308, § 3, at 5520, Laws of Fla.(1997).
As restrictions of freedoms need to be justified / just, and, therefore, relevant, the subsequent history of the 1995 statute, shows that the intent was to recognize that even sexual offenders need to be allowed to remain sexual beings.
November 19th, 2008 at 7:56 am
well as far as dealing with porn or the decision making of the court i think it’s a great idea to let sex offenders or what ever u want to call them be able to have porn, i mean whats the big deal their not focusing on a child, their mind sets is their even if porn is not there. the bottom line is that the issues need to be delt with on a single case matter only because alot of the sex offenders that have these charges is not the seirous, i mean if you have a 19 yr old an a 16 yr old, lets be for-real, how many people in school dated or had sex with a older guy or woman, thats right probaly at least half of the word. so guess what that means ( that ur all sex offenders)..right!!! so having them able to have porn an allowing them to have toys thier still adults with needs, so if u take that away u make the target towards the kids much larger, so you need to have it so that the average sex offender thats not chasing, nor rapping nor even have the desire to have any type of sexual relations..also those damm sex classes is a waste of tax payers dollars, u take a sex offender who made a mistake by touching a 17 yr old girl on the butt..an put them in the same field with the ones that rape and hurt kids..it’s a no brainer your creating a murder..!!!!!!!!!! the one that is not a rapest or a child molester is going to snap an pop the other in the head with the biggest weapon they can find..SO PLEASE AMERICA LETS GET IT TOGETHER AN FOCUS ON THE REAL PROBLEM IN THE THIS ISSUE…………..I KNOW I LIVE WITH A SEX OFFENDER WHO’S CRIME is not a big deal, how is a smack on the ass going to affect the girl life who was a teenager an he was 19, going to compare to the label of a monster for the rest of his life..it’s not fair, but only God can come an fix that..!!!!!!!!!
January 19th, 2009 at 10:30 am
i really like yoour blog i actually do read it almost daily! keep the good work up!