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August 12, 2016

"Let’s Talk About Sex: Defining 'Sexually Oriented or Sexually Stimulating' Material in Sex Offender Contacts"

A helpful reader altered me to this intriguing student note authored by Ricardo Roybal. Here is how it gets started:

Sex offenders are perceived to be the “scourge of modern America, the irredeemable monsters that prey on the innocent.” As this quote indicates, sex offenders are painted by society with a single, rough brush. This view, facilitated by a handful of high-profile sexual assaults involving children in the early 1990’s, led to legislative action.

In New Mexico, the Sex Offender Registration and Notification Act (“SORNA”) requires individuals convicted of a sex crime to comply with various restrictions specified in “Sex Offender Supervision Behavioral Contracts.” Among the limitations in these sex offender contracts is a ban on viewing or possessing any “sexually oriented or sexually stimulating” materials.

In State of New Mexico v. Dinapoli, the New Mexico Court of Appeals addressed the constitutionality of this provision in a sex offender contract. In the case, the sex offender, Robert Dinapoli, was deemed to have violated this provision because he possessed three mainstream DVDs — the American and Swedish versions of The Girl with the Dragon Tattoo, and a third film titled I Spit on Your Grave. Dinapoli objected on the grounds that the he was deprived of notice due to the broad and vague structure of the violated term.

The Court of Appeals rejected this argument and accordingly ruled that Dinapoli was afforded proper notice and dismissed the contention that the condition was overly broad or vague.

This Note focuses on this issue and aims to resolve it.  This Note argues that the provision prohibiting “sexually oriented or sexually stimulating” materials in Section 6(A) of the New Mexico sex offender contract is overbroad and impermissibly vague.  As a result, this provision is prone to arbitrary and biased decision-making, and fails to provide proper notice to the offender as to what conduct it prohibits.

August 12, 2016 at 09:13 AM | Permalink

Comments

"Tattoo" contains material of the woman being raped but is overall a serious drama. It would be a problem given the state of U.S. cinema if a sex offender wasn't clear on what ws allowed. Still, a film that portrays rape is clearer than various other material. "I Spit on Your Grave" is not too hard -- it's a 70s exploitation film that is infamous for its graphic rape scenes. But, the general concern holds.

Posted by: Joe | Aug 12, 2016 10:35:34 AM

It's New Mexico, you know, the state that is putting a constitutional amendment before the voters this November that will allow the courts to deny bail to all alleged sex offenders. That state. What does anyone expect?!


Posted by: Daniel | Aug 12, 2016 1:48:59 PM

Good Salt-N-Pepa reference.

Posted by: Erik M | Aug 12, 2016 1:57:17 PM

Seems like New Mexico's next step will to ban all sex offenders from watching cable tv. Never know what might be on.
This is all becoming quite ridiculous.

Posted by: kat | Aug 12, 2016 2:00:53 PM

A lot depends upon how the courts interpret these terms. Sexually stimulating clearly place an offender on notice to avoid that broad category referred to as erotica. Basically adult videos are off-limits.

The problem comes with the phrase sexually oriented. Specifically, at what point does sex become significant enough that the material is sexually-oriented? There are a lot of movies and books with a sexual component (i.e. characters having consensual or non-consensual sex) in one or more scenes/chapter. In some of these, the sex takes place "off-screen" with some innuendo and foreplay before cutting to the morning after. Even when the sex is a key plot device (revealing something about the character as in Girl with a Dragon Tattoo or being significant to the plot line -- as in some romantic comedies), is that enough to make the movie sexually oriented? Ultimately, some of this requires the offender and courts/probation officer to exercise good sense. Most reasonable people would agree that the scene in the restaurant does not make "When Harry met Sally" a sexually-oriented film. On the other hand, despite the non-sexual scenes in the movie, most reasonable people would describe "Fifty Shades of Grey" as having a significant sexual component.

Of course, one solution for the offender is to pre-clear before they buy a dvd or download a movie or go to the movie theater. It's no different from an offender with a "don't go to bars" condition having to clarify if something like an Applebee's is considered by the local folks to be a bar or a restaurant.

Posted by: tmm | Aug 12, 2016 3:59:13 PM

[Attorney in Louisiana for 10 years prior to Tulane]

Legal scholarship provokes thought, which leads to solutions. Legal issues concerning sex offenders are difficult to maneuver around. On one hand, there is a visceral response because of the nature of the offense that the individual either pled guilty to, or was convicted of. On the other hand, there is this lack of trust in the justice system shared by many. Good job to the writer for attempting to walk that line. It appears the student was cautious to put forth an objective analysis and supports this stance by explaining that the change will not strip the law of its bite.

This blog does a brilliant job to highlight the differences between different state jurisdictions. As an individual closely related to a sex offender, I am an advocate for those who aim to increase the transparency in the legal system. I agree with the author that the law, meant to rehabilitate, is effecting, only if the offender acknowledges what conduct is acceptable. Otherwise, the "reintegration to back into society" intent is B.S.

One concern with the proposal is the length of the definition. The offender definitely has notice about the meaning of this condition, but there are many others, correct? That being said, this seems like a step in the right direction for the state (so long as people listen).

K. A.


Posted by: College Prof. | Aug 12, 2016 5:00:50 PM

"Legal scholarship provokes thought", (very little thought I might add), which fails to address the elephant in the room.

At what point do "civil" penalties become punishments or, to use a bastardized euphemism, (restrictions) and lead to tyranny. When anyone is off of parole or probation, that person should not be subject to "extra-governmental" control, including FIP rulings, or in this case SSMIP categories. If not, what does "equal protection under the law mean"? That we may pass laws binding on some people but not others?

Oh yeah, just like "hate crime" and "civil rights" violations.

We are so blind that we cannot see tyranny that WE approve of for other people.

PS: I am tired of the gertruding like "Sex offenders are perceived to be the “scourge of modern America, the irredeemable monsters that prey on the innocent” as an excuse to present an unpopular idea, to be used to cowardly present an idea whose time has come.

Some SO's are, many are not. The Law is an ass.

Posted by: albeed | Aug 13, 2016 7:26:53 AM

I agree with albeed.
From where I stand, the "uneducated" are the "scourge of modern America, the irredeemable monsters that prey on the innocent." If they would just educate themselves, even a little bit, they would learn that not all sex offenders are contact offenders, predators, pedophiles or monsters and that the dumbest things like skinny dipping and public urination can actually get you labeled "sex offender".
Yes, the law is an ass.

Posted by: kat | Aug 13, 2016 10:35:14 AM

I'm guessing that the major unstated premise is that possession of porn leads to acting out with victims, but isn't there research suggesting that the wide availability of pornography leads to a decrease in the incidence of sexual violence? In other words, I wonder how much of this stuff is just based on some legislators personal preferences and ideas as opposed to anything resembling sound evidence.

Posted by: Guy | Aug 13, 2016 11:02:11 AM

I'm guessing that the major unstated premise is that possession of porn leads to acting out with victims, but isn't there research suggesting that the wide availability of pornography leads to a decrease in the incidence of sexual violence? In other words, I wonder how much of this stuff is just based on some legislators personal preferences and ideas as opposed to anything resembling sound evidence.

Posted by: Guy | Aug 13, 2016 11:02:12 AM

What happens if former sex offenders band together to defy these laws the way civil rights groups did with such tactics as boycotting segregated lunch counters and public transportation?

Posted by: william r. delzell | Aug 13, 2016 7:19:22 PM

Sitting at lunch counters might not have the same cachet as the right to own "I Spit On Your Grave."

Posted by: Joe | Aug 13, 2016 8:43:31 PM

So long as the USSC ruling that S.O. laws (IE, the REGISTRY) are regulatory and not punitive, states like New Mexico, Oklahoma, Texas, and Florida will continue to impose restrictions (contracts, if you will) on sex offenders that are punitive and not regulatory. You can dress up a pig in a clown costume, but, in the end, isn't the pig still a pig?
As a S.O. myself (but also a decorated Desert Storm veteran), I would say honestly that I deserved the sentence imposed upon me. Only, however, to the end of my probation period (10 years). Unfortunately, it won't end at 10 years, as I must register for life. Since SORNA isn't based on facts, how can it be law? Isn't this, in itself, tyranny? Or just plain old hysteria?

Posted by: oswaldo | Aug 14, 2016 8:34:50 PM

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