Florida Supreme Court: Even Sex Offenders Deserve To Use Porn
Defense Attorney hails decision as 'victory for due process and fair notice'
JACKSONVILLE, Fla. -
Posted Jul 11th, 2008 02:00 PM by Mark Kernes
The Florida Supreme Court ruled yesterday that even a man who had been convicted of "lewd or lascivious battery" and "exhibition" on a 15-year-old boy, and was on probation for those crimes, has the right to possess some sexually explicit materials for his private use.
At issue was 61-year-old Donald Dean Kasischke, a researcher in gerontology (the process of aging), who pleaded guilty to having performed oral sex on the 15-year-old and masturbated in front of him. As part of Kasischke's "community control" and probation, he agreed to the following statutory condition: "Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern."
Fast-forward two years, to a "compliance check" made of Kasischke's home by probation officers, who found a videotape and several photos of young males having sex. The cops promptly arrested Kasischke and sent him to prison to serve the remainder of his term - an action which Kasischke appealed.
The basis of Kasischke's appeal was the words banning possession of materials "that are relevant to the offender's deviant behavior pattern." While Kasischke didn't deny he'd had the photos and the tape, he argued that since they were of adult males, they didn't fall under the court's prohibition.
"The specific question is which part of the sentence is modified by the phrase 'relevant to the offender's deviant behavior pattern'?" wrote Justice Raoul Cantero III for the majority. "The State argues that the phrase modifies 'sexually stimulating visual or auditory material,' which would mean that the statute prohibits possession of all obscene and pornographic material, as well as 'sexually stimulating visual or auditory material ... relevant to the offender's deviant behavior pattern.' The Petitioner, on the other hand, argues that the phrase modifies 'obscene, pornographic, or sexually stimulating visual or auditory material,' so that the statute prohibits possession only of such material that is relevant to his deviant behavior." [Emphasis in original]
During oral argument of the appeal, the State conceded that the wording of the condition was ambiguous, which caused Justice Cantero to delve into the legislative intent of the statute, even going so far as to look at the legislative staff analyses of the various changes to the statute. What he found was that beginning with a 1997 revision of the statute, which prior to that time had clearly banned possession of all sexually stimulating material by a probationer, "the 1997 amendment seems intended to narrow the prohibition's scope. This is consistent with Kasischke's proffered reading of the statute."
For Justice Cantero, one crucial point was the legislature's use of the term "as well as" rather than "including" in its choice of statutory language, noting, "The Legislature did not include such language, and we cannot add it on our own." He also undertook a long analysis of the state's canons of statutory construction, which give guidance on how the use of grammatical rules can aid in determining the legislative intent.
"The final possible interpretation of the last phrase is that it modifies the entire sentence so that defendants are prohibited from possessing any obscene, pornographic, or sexually stimulating material, but only to the extent the material is relevant to the offender's deviant behavior pattern," the Justice concluded. "This interpretation seems at least as faithful an interpretation of the text as the others, if not more so. It has the benefit of prohibiting obscene, pornographic, and sexually stimulating material to the same extent and gives a logical meaning to the last phrase."
"This case is a victory for due process and fair notice," Assistant Public Defender Thomas Regnier, who represents Kasischke, told the Miami Herald
. "Laws have to be clearly written so they're understandable. And when they're not clearly written, they can't be used against a defendant."
Kasischke will now be given a new hearing on his alleged probation violation in light of the Supreme Court's ruling, and it is expected that he will be freed from incarceration.