By Natalia Holliday, Staff Writer
In Twin Falls, Idaho, 19-year-old Cody Duane Scott Herrera pleaded guilty to raping a 14-year-old girl in March 2015.[1] In lieu of 5-15 years of imprisonment, Fifth District Judge Randy Stoker ordered Herrera to complete a yearlong therapeutic program with a hitch: If he completes the program and subsequently enters probation, a condition of his probation is that he is only permitted to engage in sexual intercourse with the person he marries, if he marries.[2] Judge Stoker reasoned that the 19-year-old’s sexual activity was abnormal, as he had 34 partners to date and admitted to having sexual fantasies of a 13-year-old girl.[3]
The court order immediately faced speculation that it was both unconstitutional and unenforceable.[4] The constitutionality of the condition may lie in Fourteenth Amendment due process rights: “[No State shall] deprive any person of life, liberty, or property, without due process of law[.]”[5]
In the United States Supreme Court case Lawrence v. Texas, the majority stated that “[l]iberty presumes an autonomy of self that includes freedom of … intimate conduct.”[6] The Court overturned its previous rule from Bowers v. Hardwick,[7] which held that a Georgia statute criminalizing homosexual sodomy did not violate the Constitution because the Constitution does not protect any fundamental right to homosexuals to engage in anal sex.[8] The majority in Lawrence determined that the Bowers Court oversimplified the issue.[9]
To boil the question of personal liberty down to the specific question of certain sexual acts, the Lawrence Court said, is as demeaning as treating marriage as merely a right to have sexual intercourse.[10] (One may argue that Judge Stoker treats marriage as such a right by ordering Herrera’s probation condition.) The issue in Bowers, and again in Lawrence, was a citizen’s right to be free from government interference of his personal intimate affairs. The majority held that Bowers, as well as the similar Texas statute in question in Lawrence, violated Fourteenth Amendment due process rights.[11]
Yet, Lawrence distinguished itself as a case “not [involving] minors … [or] persons who might be injured or coerced.”[12] Rather, the petitioners in Lawrence were two consenting adults. Herrera may have difficulty convincing an appellate court of Lawrence’s application to his situation, given the nature of his crime. On the other hand, Judge Stoker’s order prohibits Herrera from sexual intercourse before marriage in any capacity, including with another consenting adult.
Idaho courts have discretion to impose probation conditions deemed necessary and appropriate to fulfill the purpose of probation,[13] which is rehabilitation of the defendant.[14] The question of whether compulsory celibacy as a probation condition for a sex offender is either constitutional or necessary and appropriate has not yet been reviewed by binding or persuasive authorities; potentially analogous probation conditions, however, have been reviewed by both binding and persuasive authorities.
In Skinner v. Oklahoma, the US Supreme Court ruled on the constitutionality of an Oklahoma sterilization law, which permitted the State to forcibly sterilize repeat offenders of “felonies involving moral turpitude.”[15] While the Court overruled the law as a violation of the Fourteenth Amendment Equal Protection Clause — a repeat chicken thief faced sterilization while an embezzler did not — it made a point to note that the ability to procreate is a basic civil right, and the power to sterilize has “subtle, far-reaching, and devastating effects.”[16]
In 1985, the Supreme Court of South Carolina considered the procreation rights of three sex offenders in State v. Brown.[17] The trial court had ordered that the defendants could suspend their 30-year sentences by submitting to surgical castration, then completing a 5-year probation.[18] On review, the South Carolina Supreme Court held that, while trial judges have wide discretion in imposing conditions of a sentence or probation, they cannot impose conditions which are illegal or void as against public policy.[19] The Court viewed castration, a form of mutilation, as cruel and unusual punishment and against public policy.[20]
For Herrera, the condition imposed by Judge Stoker may not rise to quite that level of cruel and unusual punishment as to be against public policy, because his right to procreate is not at issue. Further, one can argue that his sentence is not permanent unless he fails to ever marry, and so not nearly as severe as forced sterilization or castration. That fact, however, implicates the possibility that Herrera could treat marriage as the demeaning “right to sexual intercourse” discussed in Lawrence, and marry for that reason alone.
Even more likely, because probation officers do not supervise probationers 24/7, Herrera could simply have sex without informing his probation officer. The logistical issues of enforcing the condition will surely be raised should Herrera appeal it.
While constitutionality and enforceability are in question, the court is also just in raising both its discretionary authority and its valid consideration of public policy in defending the order. Herrera has not yet appealed the condition, but if he does, the ensuing battle will surely be a fascinating one.
Sources
[1] http://magicvalley.com/news/local/crime-and-courts/judge-no-sex-on-probation/article_62c36e96-d90d-5d98-8104-0f69183b40da.html
[2] Id.
[3] Id.
[4] Id.
[5] USCS Const. Amend. 14 (emphasis added).
[6] Lawrence v. Texas, 539 US 558, 562 (2003).
[7] Id. at 578.
[8] Id. at 566.
[9] Id. at 567.
[10] Id.
[11] Id. at 567.
[12] Id. at 578.
[13] Idaho Code § 19-2601(2).
[14] State v. Sandoval, 452 P.2d 350 (1969).
[15] Skinner v. Oklahoma, 316 US 535, 536 (1942).
[16] Id. at 541.
[17] State v. Brown, 326 S.E.2d 410 (1985).
[18] Id. at 411.
[19] Id.
[20] Id. at 412.
