J.H.-M., a minor, was adjudicated guilty of rape by forcible compulsion after a trial. He was ordered, upon receiving a suspended detention sentence, not to engage with material depicting “sexually explicit conduct”. He challenged this condition as unconstitutionally ‘vague’ and ‘overbroad’.
The legal route to Washington’s Supreme Court’s was so long and circuitous, J.H.-M. was done with his 24-month probation period before the case was concluded at the appellate level. ‘Circuitous’ because the pro-tem sentencing judge declined to order a sexually explicit material prohibition, considering the same too “vague”! The court left the issue of questionable materials up to J.H.-M.’s treatment provider. However, weirdly, the court’s written order included the prohibition! J.H.-M. appealed, and the State moved to concede error!!
Division One denied the State’s motion! Division One ordered briefing, and upheld the condition, concluding “any material depicting any person engaged in sexually explicit conduct as defined by [now former] RCW 9.68A.011(4) was not unconstitutionally vague or overbroad”. Forgotten or overlooked was the fact that the original judge did not order such a prohibition.
‘Vague’ or ‘overbroad’ conditions are constitutionally unenforceable when defendants aren’t adequately alerted to prohibited conduct or the prohibition infringes on fundamental rights. Sexually explicit material (i.e. pornography or nudity meant only to sexually stimulate) is protected under the First Amendment to the U.S. Constitution as a protected right of expression. Limitations for convicted or adjudicated persons in sentencing conditions are only allowed if “sensitively imposed and narrowly tailored”. State v. Johnson, 197 Wn 2d 740, 744-745 (2021). A juvenile court has “broad authority” to craft a “resolution that advances rehabilitation if related to the underlying offense”. Limiting sexually explicit materials is related to the “goal of rehabilitation” because it is logical to “conclude a person who cannot suppress sexual urges should be prohibited” from “accessing sexually explicit materials meant only to invoke sexual stimulation”. See, generally, J.H.-M. at 102635-4 for quoted material.
The Supreme Court found J.H.-M.’s appellate issue one of public importance, even though he was done with his probation! The Supreme Court recognized in case law and statutory standards under RCW 9.68A.011(4) [now (7)], persons of ordinary intelligence can understand what is proscribed, notwithstanding possible areas of disagreement. Such a condition is sufficiently definite. State v. Nguyen, 191 Wn 2d 671, 679 (2018). The J.H.-M. Court held that ‘sexually explicit’ materials are materials that are “unequivocally sexual in nature”, and that RCW 9.68A lists acts which are sexually explicit when depicted.
J.H.-M.’s condition was constitutionally supportable because materials depicting “sexually explicit” conduct are materials where there is conduct that is ‘unequivocally sexual in nature’ or when the depiction has the ‘intent to sexually stimulate’ the person.
There is a strong dissent in J.H.-M. by Judge McCloud, joined by Montoya. McCloud believes the ‘clarity’ found by the majority to avoid unconstitutional vagueness is from appellate decisions and statutory analysis that would be obscure to a “juvenile without a legal degree”.
The Supreme Court makes it very clear by this opinion that sentence conditions proscribing “sexually explicit” material is a matter of high public importance in sexual assault and other sex crime cases. So much so, that even though the State agreed that the sentencing judge did not order such a condition, the Supreme Court held the inadvertent condition was legally supportable.