FL- Florida high court: Sex offenders can have porn

7-11-2008 Florida:

The Florida Supreme Court on Thursday ruled that sex offenders on probation can possess pornography so long as it does not relate to the offender's ``particular deviant behavior pattern.''

The 5-2 decision overturns a 2006 Third District Court of Appeal ruling on a Miami case in which that court said offenders cannot possess any sexually explicit material.

In the Miami case at issue, Donald Kasischke pleaded guilty in 2001 to three counts each of lewd or lascivious battery and exhibition on a 15-year-old boy. He was sentenced to a year in prison followed by two years of community control and eight years of probation.

A search of Kasischke's home after his release turned up pornographic photos and a videotape. He was hauled back to prison, which the Third DCA ruled was appropriate.

But the Supreme Court justices read the wording of the law, which included the phrase about relevance to an offender's deviant behavior pattern, and they decided Kasischke should not have been reincarcerated.

Kasischke, 61, is still locked up at Everglades Correctional Institution in South Miami-Dade County, but he will have a new hearing in Miami based on Thursday's favorable ruling.

''This case is a victory for due process and fair notice,'' said Thomas Regnier, the Miami-Dade County assistant public defender who represents Kasischke. ``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.''

In Florida, judges must impose certain conditions on sex offenders who are being released on probation. Conditions include curfews, completion of a treatment program and not being able to live within 1,000 feet of schools or playgrounds.

Another condition of release -- the one at issue in this case -- is explained in Florida's statutes:

``Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, accessing, 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.''

In writing the Supreme Court's ruling, Justice Raoul Cantero III noted that the court considered all possible interpretations of the wording.

The majority concluded that the phrase ''relevant to the offender's deviant behavior pattern'' included all items previously mentioned in the sentence. The justices who dissented -- R. Fred Lewis and Kenneth Bell -- argued that the language was meant to prohibit all pornographic materials.

Acknowledging the law's wording is ambiguous and open to multiple interpretations, Cantero said the court applied the rule of lenity to this case. That rule says ``when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.'' ..News Source.. by EVAN S. BENN