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Fourth Circuit Strikes Bans on Internet, Legal Pornography For Sex Offender

[fd.org – 1/10/21]

The Fourth Circuit held (link is external) that conditions of supervised release banning legal pornography and internet access are too restrictive and cannot be sustained as “reasonably related” under 18 U.S.C. 3583(d)(1) and are overbroad under 18 U.S.C. 3583(d)(2). The court explained that the district court abused its discretion in imposing an outright ban on defendant possessing legal pornography or entering any location where it may be accessed.

The circuit stated that pornography use was not the basis of any violation. Further, when defendant lied about watching pornography during a polygraph exam at the outset of his sex offender treatment, the violative conduct was dishonesty, not pornography consumption. Finally, the pornography restriction impermissibly restricts more liberty than is reasonably necessary.

The case is United States v. Ellis (link is external), No. 19-04159 (4th Cir. Jan. 8, 2021).

Read the full article

 

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In this opinion, the 4th Circuit summarily said the PO can’t prohibit the internet, legal porn, or locations where they may be available (which is nearly everywhere) without an individualized assessment that using it would result in an increased risk of committing another sex crime; purported “common sense” doesn’t establish that. In my opinion (for what it’s worth), if the defendant’s (whose original offense was CP possession) circumstances as found by the court doesn’t justify prohibiting legal porn or the internet, I would think there are NO circumstances that would support such prohibitions.

An excellent opinion. I would only add that the term “pornography” is often redefined by POs or LE to each individual. I’ve read accounts where registrants were charged with CP for having school pictures of their own children. I’ve been threatened with revocation for watching music videos on YouTube, which my PO at the time considered porn (an occasion which I fondly remember as one of the first instances where I challenged him and prevailed). I’ve heard of many occasions where LE/POs considered things like American Pie, the Sopranos, Game of Thrones, even Disney films pornographic (for the individual).

Through it all, I’ve never heard of one single occasion where porn use was a factor in any sex crime whatsoever. The closest anyone can come to that is those stupid entrapment stings where LE will forcibly attach CP images to one’s system so they can arrest for possession (cases which can be and have been defeated by insisting on disclosure of the software LE uses and does not want to reveal).

To the contrary, porn use is encouraged by shrinks in treating actual, competently diagnosed (as opposed to state or court presumed) sexual disorders. Porn addiction isn’t good for the individuals that have it or their family members, of course. But a porn addict actually, physically assaulting a living, breathing human is extremely rare if it happens at all. In general, that can be proven by the fact that porn use has risen exponentially since the internet became mainstream, but overall sex crime rates (committed by first-timers or recidivists) haven’t risen accordingly.

Contrary consideration.

Re: Through it all, I’ve never heard of one single occasion where porn use was a factor in any sex crime whatsoever.

Are you an expert on this? I think that so councilors would disagree that something along the lines of addition isn’t set off by watching.

No, I’m not an expert. I was referring to my extensive research on this very subject matter (porn use leading to sex crime) when I challenged the assertion made by my former “treatment” provider. I was unable to find a criminal case where porn use contributed, and my claim that it was encouraged in treating actual, competently diagnosed sexual disorders comes from being told by two different psychiatrists. Neither could recall a clinical case to support the notion, either.

When I brought this to the “treatment” provider, she changed tactic to claiming that the concern is that one who watches adult porn might turn to CP and never discussed the topic again. I wasn’t surprised, considering nearly all CP convictions over the past 20 years or so were the result of LE trolling adult porn sites to find someone to sting. I never have and never will understand the reasoning that someone who goes to adult porn sites is somehow a child predator – I seriously doubt that actual child predators would go to adult sites hoping to run into minors there.

That substance abuse counselors (and that is what most “treatment” providers are, simply substituting sex and children for drugs and alcohol) believe addictions are “set off by watching” is a given. They have no education or training to “treat” anything but addiction and have no recourse other than to “treat” registrants as addicts despite the fact that nearly all sex crimes are the result of poor judgment, isolated circumstances, or just plain old bad luck, as opposed to addiction or serious mental disorder. Not to mention that providers’ livelihoods depend on finding something to “treat.”

Beyond that, modern “sex offender treatment” is more an additional means of supervision and has little, if anything, to do with mental health. That assertion is supported by the experiences of nearly every single registrant who has ever gone through it posted here or other anti-registry sites.

Yes, the probation officers and sex treatment providers go overboard. My sex treatment provider said seeing a bra commercial on TV was porn. And seeing adult females in bikinis on TV was porn. She accused me of watching porn on tv and wanted to ban me from watching tv.

So I brought my tv and along with my rabbit ear antenna to the treatment group. I turned on the TV and flipped through the stations and the guys in the treatment group said none of these stations, NBC, Fox, CBS, ABC, KERA were porn. (I had no cable TV or internet at home because those were not available in my neighborhood). She was furious at me because I humiliated her in front of the treatment group but I was not banned from watching TV.

So then my probation officer asked me to bring in the tv guide when I saw her every week so she could tell what I was allowed to watch. So the first time, she went through the tv guide she started telling me all these tv shows I could not watch and I responded I can’t watch those anyway because I have no cable, no satellite and no internet and I only have rabbit ear antenna tv. She got really mad at me told me to no longer bring the tv guide and yelled at me to get out of her office. She was mad as tried to control me but was unable to do so.

My treatment provider flat out stated in front of the treatment group that I manipulated her because she can not control me. I just responded that I thought treatment was about rehabilitation and not about you trying to control me. This treatment provider use to be a probation officer. She eventually kicked me out of the group after I drafted a 27 page letter documenting all her ethic violations against me that
are written into state law and gave to her boss and asked to be moved to his treatment group.

Same thing, my treatment provider said watching any movie that has a sex scene is porn, I was even made to sign a contract that if I’m caught with porn I could be violated by my PO. So one day I was in treatment and they had a PO visit he grabbed everyones phone and went through it. I had a message from my brother that was considered porn, the next day my PO called me and said bring my laptop and phone and that I’m going to be violated. So my attorney said go ahead, the contract is BS, let them violate you. Well I told the PO and she dropped it, but then ordered that I take a polygraph. So I take the polygraph, they ask have you watched porn, which honestly I haven’t since I was released, and I said well yes’ since watching a commercial or any movie is considered porn. Well I passed, then my attorney filed a claim against the provider for breach of contract, and that was the end of her.

Fast forward, I was only required to do 52 weeks, I told my PO for years that I only had to do it, but then I was told the order was vague. I go to court recently to get ETP and he said well you had an incident concerning porn on a PO report years ago, but he said since it was after your required 52 weeks, anything past that was voluntary. Mind blown at this point, that not only I was right, but I wasted over $7,800.00 on treatment that I didn’t need to attend.

While I was convicted of a violation of conditions because I had adult porn on my computer in a different district, this case can be used as persuasive, right? I have hopes in it can be and I can get my violation dropped meaning I could then petition the court to de-register and get off CSL.

@LPH

Yes, persuasive.

Wow, what a flippen’ nightmare. She makes Nurse Ratched sound like Mother Theresa.
Protected government jobs are the last hope for people like her who couldn’t maintain gainful employment in the private sector. What a miserable human being sue must be and I’ll bet her pets dread her return home everyday when they feel her wrath.

How did an atty let a polygraph get used in a case when it’s supposedly inadmissible in the first place? Junk science…

Every little victory is one more crack in the dam.

Polygraphs were invented in the 1920s to get false confessions. The first time a suspect took one, he passed it, the administrator told him he failed. He was so shaken by this, he confessed to a murder he didn’t commit.

Wow.

The court is saying you can’t make a non-criminal (legal) act a criminal act, nor prevent it. You can substitute other things for porn such as living restrictions, presence restrictions, …

Hmmm… isn’t the IML preventing free travel. Sure, the other country is banning you, but it’s the USA that’s providing that information to ban you!

While the court case only focuses on probation, we can query why is being a citizen no longer under custody have fewer right than being under custody.

“…..the [pornography] restriction impermissibly restricts more liberty than is reasonably necessary.” 🤔
It could certainly be argued that many restrictions Registrants face impermissibly restrict more liberty than is reasonably necessary.

Decisions, decisions, decisions, seems like we all make decisons or do we make choices in these legal battles. In this porno issue do people make the choice or the decision to watch or look at pornography material. Porn is not good or who told you were naked.

This article that Janice has brought up gives some very enlightening view to those who have an ounce of understanding. See police enforcing is all about correction and in many ways much of this sex offender registry is either justifable or unjustifable or abusive in these behavior matters.

Sure people have a right to watch porn if thats their way of understanding just the same as their right to guns. Even the tongue can be a weapon to make one or break one and who can tame the tongue. The main key with correction officers is to protect and serve and if correction is needed thats what law enforcement is all about. Or is correction like some past president who said .. Nobody tells me what to do… than who does?

Correcting by this type of inducement were their is no teenager involved is a bit underhanded in this ill gotten gain episode. The basic’s is to catch a predator that is talking to a teenager by some ruse type method. So were does discernment come about or prediction?

Its like predicting the sky is falling on the one induced in all this by these ruses. Sure we can all make the wrong decisions or choices but the outcome is someone is lying and their was no teenager involved in many of these sex registry ordeals. Lying has no legal merit in law enforcement.

Now Janice is out in California and its a whole different circumstance than other states with fightening crime and seeking justice for all. As far as addiction to something that can even be a degree of the addiction to understand one’s self or their behavior. Law enforcement are no boy scouts.

I don’t have anything that has to do with the internet. But at my polygraphs thay ask if I’m using acomputer or if I’m watching porn how is this law going to be implemented

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