Sunday, July 12, 2015

A Probationer Doesn’t Kiss and Tell

State v. Galanes2015 VT 80

By Thomas M. Kester

The fact pattern of this case reads a bit like Romeo and Juliet, or for the more contemporary, like a Fifty Shades of Grey novel (but better written) and is filled with lovers' trysts and forbidden acts. This case pushes the notion of whether “A rose by any other name would smell as sweet” when it comes to interpreting “sexual or romantic relationships” under Vermont law.

Defendant was convicted of several felony and misdemeanor offenses and, after two separate probation violations, he had his conditions regarding sexual relationships tightened. Condition 45 (a.k.a. the “chastity belt” condition) states:
You must inform your [probation officer] of the name and contact information of any person with whom you are planning to have a date or with whom you are planning to begin a dating, sexual or romantic relationship, prior to the date or beginning of the relationship.
I'd imagine nothing is sexier to a woman than you having to tell your probation officer that you have the hots for herforget “Facebook-official” relationships; you now have “Probation-Officer-official” relationships. I can only imagine how weird the Tinder conversations might be (“I want you to save that thought because I gotta go tell my probation officer about itbrb”). 

So the defendant was given a polygraph test and the needle must have oscillated like an earthquake was happening (or so I am envisioning) when defendant was asked if he had engaged in any sexual acts during the past five months since Condition 45 was in effect. Fast forward a month and the defendant “admitted to [the probation officer] … [that] he had engaged in a sexual relationship with the woman in the six months [during the past five months].” Taking a page out of Arnold Schwarzenegger’s playbook, the woman in question was his maid but they knew each other and had a friendship that predated all of this. 

At a merits hearing, both of them testified to their alleged illicit engagements. The most recent of the two or three times they had sex was after Condition 45 was in effect and was the focus for the trial court. To summarize the events that unfolded at the most recent entanglement (cue the Kenny G music and candles) allow me to paraphrase the defendant’s testimony: 
Dear Penthouse: I had just gotten out of the shower and, striding with a towel wrapped around my waist, I came upon the maid folding laundry in my bedroom. One thing led to another and . . . .
Before your dirty minds wander too far, the maid “testified that there was no planning on the part of either her or defendant,” and the trial court acknowledged that point but stated “all of the circumstances surrounding it [the most recent encounter] . . . strengthens the evidence that [this is] the kind of thing that [defendant] should have anticipated happening” because the two had bumped uglies prior to Condition 45’s enactment.

On appeal, the defendant raises two issues: are spontaneous sexual acts prohibited under Condition 45 and does the language of Condition 45 give adequate notice as to what is prohibited? Basically, defendant wants the Vermont Supreme Court to define “sexual relationship” and “planning” on the spectrum between rendezvous methodically marked-down as “sexy time” on a calendar to the heat-of-the-moment, college-dorm-room experience on a Saturday night. The State argues that any “voluntary sexual contact” that the defendant has (even if it is a single act) allows them to “rooster block” the defendant if they don’t know about it.

The High Court begins by noting that probationers must give notice to the State of prohibited acts and that Condition 45 was custom-tailored for defendant. The Court turns to “sexual relationship” and begins ruminating about what constitutes a “relationship.” Rather than analyzing every Taylor Swift song the SCOV heads over to the boring ol' dictionary. The definition, to the Court, “suggests something more significant than a single encounter.” The State relies on a law review article about what “sexual relationship” means “in the context of domestic violence laws” (how romantic of them). The law review author’s conclusion is that “key interpretive questions [about what constitutes a “sexual relationship”] . . . have no clear answer,” which provides a stale answer to Haddaway’s ubiquitous song What is Love?. Other states have interpreted “sexual relationship” with varying results but in the end the Court concludes that the term is “vague as applied to the facts before us.”

Onto the term “planning.” Once again, the dusty dictionary conjures up a view that “undoubtedly connote[s] some period of time during which an individual contemplates taking action” rather than simply acting upon primal urges.

The Court concludes by juxtaposing the dissent’s view with the reality of the case. Anything he did before Condition 45 is fair game to the majority. They view the dissent as “impl[ying] that defendant should have anticipated that he would again have sex with his housekeeper,” like some sort of sexual soothsayer.

The dissent takes the position that what the maid and defendant have “reasonably be called an intimate or 'emotional connection.’” What I’d call it could be used as the title for one of those DVDs in the 21+ section of your local movie-rental store. The dissent goes on to differentiate “sexual encounter” from “sexual relationship,” and reasons that the majority holding overlooks the fact that this ongoing “friendship” was more of a “FWB” situation. Finally, the dissent points to the merit hearings where Condition 45 was implemented, and notes that defendant knew exactly the purpose and scope of the condition at the time of its genesis. 

In summationif your probation condition is clearer than Condition 45, you need to practice safe sex by notifying your probation officer ahead of time.

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