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April 8, 2018

Interesting Vermont Supreme Court ruling on sex-offender probation conditions

As reported in this local press article, the "Vermont Supreme Court ruled on Friday that the state cannot uniformly declare pornography off-limits to sex offenders." Here is more from the press report:

The decision does allow a sex offender’s probation to include such restrictions, but only if they are deemed specifically appropriate to the individual offender.  The 18-page decision dealt with the probation conditions of a man convicted of sexual assault in 2012 in Chittenden County....

[Yetha L. Lumumba] appealed several conditions of his probation, including one that prohibited him from “purchasing, possessing or using pornography or erotica and going to adult bookstores, sex shops, and topless bars,” according to court records.  The condition was described at the sentencing hearing as a standard one for sex offenders because pornography is seen as contributing to an increased risk of reoffending

“Vermont’s probation statute makes it clear that a court cannot prohibit a probationer from engaging in lawful behavior unless the prohibition relates to the defendant’s rehabilitation or public safety,” the Supreme Court justices wrote.  “Other courts have persuasively concluded that a sentencing court must provide at least some support on the record for imposing a probation condition restricting a defendant’s use of pornography, even when the defendant was convicted of a sex offense.”

The full ruling in Vermont v. Lumumba, 2018 VT 40 (Vt. April 6, 2018), is available at this link and covers lots of ground and cites a lot of law beyond the Green Mountain state. Here is how the unanimous opinion gets started:

Defendant challenges so-called standard and special sex-offender probation conditions that the trial court imposed following his conviction for sexual assault.  Defendant argues that this Court should strike a number of the standard conditions imposed by the trial court in its written order because the conditions were not orally pronounced during the sentencing hearing and were not sufficiently connected to his crime or rehabilitation.  He also argues that the sex-offender condition prohibiting defendant from purchasing, possessing, or using pornography or erotica and from going to “adult bookstores, sex shops, topless bars, etc.” is unrelated to his offense and unconstitutionally vague.  We conclude that defendant failed to properly preserve his objections to the standard conditions and review them for plain error.  Based on the particular provisions and the State’s concessions, we strike some conditions, remand some conditions, and affirm the remaining conditions.  We strike the challenged special condition as unsupported by the record.

April 8, 2018 at 11:09 AM | Permalink


The breadth of "erotica" in particular is notable.

Posted by: Joe | Apr 8, 2018 1:09:18 PM

Will these state laws next start banning politically subversive literature that advocates civil disobedience to secure civil rights for everybody?

Posted by: william r. delzell | Apr 8, 2018 3:47:05 PM

Oh come on! What part of the words sex offender doesn't the Court understand?


Repeat until everything bad becomes good.

Posted by: Huh? | Apr 8, 2018 4:43:58 PM

Maybe the state wants to ban materials that might give former sex offenders subversive ideas like organizing and, God forbid, even arming themselves against both vigilantes and unscrupulous law enforcement individuals. Other have-not groups at times in History have organized and armed themselves into radical self-defense groups such as the Black Panthers, various anti-Fascist groups, and so on.

No wonder the government wants to impose censorship on them!

Posted by: william r. delzell | Apr 8, 2018 5:45:12 PM

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