notify the Probation Department when he establishes a significant romantic relationship and ... inform the other party of his prior criminal history concerning his sex offenses.” The condition also provided that “[t]he defendant understands that he must notify the Probation Department of that significant other’s address, age, and where the individual may be contacted.”
Is this legal? The case is United States v. Reeves, decided on January 7. Judges have much leeway in imposing conditions of supervised release. But as the Court of Appeals (Parker, Pooler and Leval) notes, "If a condition, however well-intentioned, is not sufficiently clear, it may not be imposed. 'Due process requires that [a] condition[] of supervised release be sufficiently clear to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'”
This legal standard dooms the "relationship" clause of Reeves' probation. The Court of Appeals says that "We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a 'significant romantic relationship.'” What the Court is saying is that Reeves should not risk jail time because he cannot precisely know what it means to enter into a "significant romantic relationship."
Hence, the philosophical question: what is a significant romantic relationship? Maybe we know it when we see it. But you can't send someone to jail on this subjective requirement. Judge Parker gives us a rhetorical flourish in explaining the Second Circuit's reasoning:
What makes a relationship “romantic,” let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be “significant.” The history of romance is replete with precisely these blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814); When Harry Met Sally (Columbia Pictures 1989); He’s Just Not That Into You (Flower Films 2009).
This Court is certainly not soft on child pornography, but sometimes pop culture references really do highlight complex legal reasoning. It works here. There are a million ways to define "significant romantic relationship." In fact, each word in "significant romantic relationship" has various definitions. The fact that the trial judge imposed this condition on his own (without any request from prosecutor or any notice to Reeves) doesn't help any. What also works in Reeves' favor is that he was a 50-year-old man with two children who had no prior problems or any allegations of domestic violence or abuse. While he possessed the child pornography, he did not create it, and nothing in his background suggests any sexual attraction to children per se. And, Judge Parker notes, "nothing in the record suggests that he has been a threat to any romantic partner." Indeed, the Court of Appeals concludes (in the understatement of the year):
we are hard-pressed to see how the notification requirement is reasonably necessary to protect someone with whom Reeves might choose to associate. Nor is it at all apparent that such a notification requirement will promote his rehabilitation. To the contrary, the requirement would almost certainly adversely affect, and could very well prematurely end, any intimate relationship he might develop, placing him at a greater risk of social isolation and thus impair, rather than enhance, his rehabilitation.
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