May 22, 2014 By Stephen Klarich
Is a sex offender on probation allowed to socialize?
Should a sex offender on probation need permission to socialize?

In California, common conditions of probation for anyone convicted of a sex offense involving a minor include that he or she have no contact with anyone under the age of 18. Generally, the conditions apply not only to contact with minors themselves, but also to anyone who has custody of a minor, such as a parent or legal guardian.

The purpose of these conditions is to limit convicted sex offenders from being put in situations where they may be able to reoffend. The government, acting on behalf of the public, has what is known as a “compelling interest” to provide for the protection of public safety.

The question posed recently before the California Court of Appeal is whether a sex offender on probation must obtain his or her probation officer’s approval before associating with someone who has custody of a minor child.

People v. Michael Klatt

The defendant, 27-year-old Michael Klatt, was charged with inappropriate sexual contact with his 14-year-old stepbrother in 2008 and 2009. Klatt was convicted of two counts of lewd and lascivious conduct with a minor aged 14 or 15 in violation of Penal Code section 288 (c)(1). He received a three-year probation term, including six months in jail, in lieu of a suspended prison sentence.

The court imposed several conditions of probation, including:

  • Mandatory sex offender treatment, required by law under Penal Code section 1203.067;
  • Waiver of his right to self-incrimination;
  • Mandatory polygraph testing; and
  • A no contact order that said that he could not “date, socialize, or form any romantic relationship with any person who has physical custody of a minor unless approved by the probation officer.”

At his sentencing, the defendant did not object to any of these conditions. However, the court agreed that he hadn’t given up his right to challenge them on appeal.

With respect to the issue that he not associate with any person who has physical custody of a minor, the defendant claimed the condition was both vague and overbroad, and therefore violates his constitutional rights.

How Did the Court Rule?

The court examined previous rulings that discussed the state’s compelling interest in providing for public safety balanced against an individual’s right to association and privacy under the Fourteenth Amendment.

The Court of Appeals reversed the lower court's decision.
The Court of Appeals reversed the lower court’s decision.

In one such ruling, a California Appellate Court held that “[a] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad” (In re Sheena K. (2007) 40 Cal.4th 875, 890).

The court recognized that it would be difficult for the defendant to refrain from socializing with anyone who had custody of a minor as the pool of prohibited associations would be so enormous it would eliminate virtually anyone and would likely include coworkers, family, friends, neighbors and fellow church members.

Additionally, the court pointed out that the condition prohibited the defendant from socializing with people regardless of whether he has any contact with their children. Such socialization among coworkers and others is likely to be so frequent that it would be impractical for the defendant to get his probation officer’s approval prior to every such incident.

The court found the same is true of the restriction that the defendant not “date” or “form a romantic relationship” with persons having custody of a minor. The court reasoned that it is possible for a probationer to “date” without coming into contact with the minors. The court suggested that much less restrictive and more narrowly focused conditions could achieve the state’s goal of protecting children without necessarily infringing on the defendant’s rights (for example, a condition that he not be present in the same room with a minor absent adult supervision).

The court found that the enormous scope of the condition restricted the defendant’s freedom far more broadly than necessary to serve the state’s interests and the purposes of the condition.

Finally, the court found the word “socialize” unconstitutionally vague. The judges felt that the word is too ambiguous for a reasonable probationer to understand with any degree of certainty as to what conduct was permitted and what conduct was prohibited.

Accordingly, the Court of Appeals reversed the lower court’s imposition of this condition, and returned the case to the trial court with instructions to consider modifying the condition so that is was more closely tailored  to achieving the state’s purpose.

Was This Decision Fair?

It is impossible for the defendant to strictly comply with the condition at all times, nor should he be required to do so. His mere association with other adults outside the presence of minors is beyond the state’s compelling interest. As written, the condition is far too restrictive to meet the stringent standards which protect his constitutional rights, even if they are limited while he is on probation.Was the Court of Appeals decision fair?

The intent of the condition is to prevent the defendant from having unsupervised access to children. The court, acting on behalf of the people, obviously doesn’t want him to victimize other minors. This is a reasonable goal for which the government’s purpose would be justified.

However, interpreted literally, the condition requires prior government approval for him to associate with virtually any adult, on any occasion. More so, even if his association with a parent or guardian is known, “socialize” doesn’t necessarily mean “date.” In fact, the condition doesn’t describe at all what exactly “socialize” means.

This is not reasonable, nor is it practical. Dating should not require permission if other less restrictive means are available in order to achieve the government’s purpose.

It is enough that the defendant’s contact with minors is restricted. He doesn’t need permission to socialize with adults. The court corrected the state’s overreach into his privacy.

What Does This Decision Mean to You?

A person on probation has a right to be clearly informed of what conduct is permitted and what conduct is prohibited so that he or she can conform his or her behavior to the requirements of the conditions and avoid a violation that could trigger a lengthy jail or prison sentence.

If you are facing or serving a probationary sentence and you are ordered to comply with a condition you feel is unnecessary or unreasonable, you may exercise your right to request a modification hearing with the court in order to try to get it changed or eliminated.

Contact Wallin & Klarich Today About Modifying Your Probation

If you or someone you love is saddled with an unreasonable probation condition, you should speak to one of our experienced criminal defense attorneys at Wallin & Klarich today.

At Wallin & Klarich, we have over 30 years of experience in Southern California helping our clients successfully modify the conditions of probation. Often a condition becomes unnecessary when circumstances have changed or it may have been unreasonably imposed from the beginning.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, Wallin & Klarich will give you the personal attention you deserve so that all of your constitutional rights are protected. We will do everything we can to help you get the best result possible in your case.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.

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