Revoking Probation of Sex Offender After Contact With Child
In State v. Martin, 171 Ariz. 159, 829 P.2d 349 (App. 1992) the Arizona court addressed an individual's claim that the State had presented insufficient evidence that he had violated a term of his probation prohibiting him from having any "contact with children under the age of eighteen years."
Martin, who was on probation for attempted molestation of a child, on one occasion had been present with other adults in the same house as two minor children, but he had spent no time alone with the children, and the State presented "no evidence of any physical or even verbal contact by Martin with these children nor of any setting conducive to improper behavior." Id. at 160, 829 P.2d at 350.
In holding that the State had presented insufficient evidence that Martin had violated the "no contact" term of his probation, we stated that, in the context in which it was used, "the word 'contact' was so vague as to fail to provide Martin with notice about what kind of group association was prohibited." Id.
While the term understandably intends to prohibit potential sexual contact with minors, the language is so broad as to also prohibit Martin from merely being present with minors in conventional places such as schools, shopping malls, churches, sporting events, or social events.
More qualified language is needed regarding "contact" to avoid penalizing such innocent physical presence with other human beings. Id.
This language indicates our concern that the term of probation at issue was both impermissibly vague and overbroad.
Overbreadth and vagueness challenges often appear in tan dem. the two concepts, however, implicate different constitutional infirmities.
"An overbroad statute is one designed to burden or punish activities which are not constitutionally protected, but the statute includes within its scope activities which are protected by the First Amendment." State v. Jones, 177 Ariz. 94, 99, 865 P.2d 138, 143 (App. 1993), quoting John E. Nowak, et al., CONSTITUTIONAL LAW, ch. 18, III at 868 (2d ed. 1983).
In comparison, an unconstitutionally vague statute fails to give a person of average intelligence reasonable notice of what behavior is prohibited or permits arbitrary and discriminatory enforcement. State v. Steiger, 162 Ariz. 138, 141-42, 781 P.2d 616, 619-20 (App. 1989).
A narrow exception to this standing requirement exists in the context of the First Amendment. In certain cases, a person whose activities are not constitutionally protected may challenge a law as overbroad if it "substantially abridges the First Amendment rights of other parties not before the court." Musser, 194 Ariz. at 32, 977 P.2d at 132, quoting Village of Schaumburg v. Citizens, 444 U.S. 620, 634-35, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980); see also State v. McLamb, 188 Ariz. 1, 9, 932 P.2d 266, 274 (App. 1996), cert. denied, 522 U.S. 814, 139 L. Ed. 2d 23, 118 S. Ct. 60 (1997).
This exception exists in order to ensure that protected speech and expression are not chilled. Young v. American Mini Theatres, Inc., 427 U.S. 50, 60, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976); McLamb, 188 Ariz. at 9, 932 P.2d at 274; Appeal in Maricopa County Juv. Action No. JT9065297, 181 Ariz. 69, 73, 887 P.2d 599, 603 (App. 1994).
However, if the regulation's "deterrent effect on legitimate expression is not both real and substantial, and if the statute is readily subject to a narrowing construction by the state courts, the litigant is not permitted to assert the rights of third parties." American Mini Theatres, 427 U.S. at 60; see also Musser, 194 Ariz. at 32, 977 P.2d at 132; McLamb, 188 Ariz. at 9, 932 P.2d at 274; Juvenile Action No. JT9065297, 181 Ariz. at 73, 887 P.2d at 603.
"Courts have consistently upheld imposition of conditions of probation that restrict a defendant's freedom of speech and association when those conditions bear a reasonable relationship to the goals of probation." United States v. Turner, 44 F.3d 900, 903 (10th Cir.)(emphasis added and citations omitted), cert. denied, 515 U.S. 1104, 132 L. Ed. 2d 258, 115 S. Ct. 2250 (1995);
see Nickerson, 164 Ariz. at 123, 791 P.2d at 649 (upholding condition preventing probationer from being in the company of his spouse because it was reasonably related to the goal of rehabilitating him); State v. Donovan, 116 Ariz. 209, 211-12, 568 P.2d 1107, 1109-10 (App. 1977)(upholding conditions that prohibited probationer from associating with his girlfriend since the conditions related to his rehabilitation).
"The question is whether there is a reasonable nexus between the conditions imposed and the goals to be achieved by the probation." State v. Davis, 119 Ariz. 140, 142, 579 P.2d 1110, 1112 (App. 1978)(finding such a nexus existed in upholding a condition prohibiting probationer from obtaining custody of her children);
see United States v. Malone, 502 F.2d 554, 556-57 (9th Cir. 1974)(finding a "reasonable nexus between the probation conditions and the goals of probation" in that case and noting that a "convicted criminal may be reasonably restricted as part of his sentence with respect to his associations in order to prevent his future criminality"), cert. denied, 419 U.S. 1124, 42 L. Ed. 2d 824, 95 S. Ct. 809 (1975).
A court will not "strike down conditions of release, even if they implicate fundamental rights, if such conditions are reasonably related to the ends of rehabilitation and protection of the public from recidivism." United States v. Schave, 186 F.3d 839, 843 (7th Cir. 1999).