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Appeals court: Ban on strip clubs, porn not justified as probation conditions

Nathaniel Herz

The Alaska Court of Appeals has given a man convicted of sexual abuse of a minor a reprieve on probation conditions that kept him from watching online pornography or going to strip clubs, saying the restrictions may have improperly infringed on his constitutional rights.

In a unanimous decision issued on Wednesday, the three-judge court lifted the conditions, which banned 21-year-old Wassillie Johnston from possessing "sexually explicit material." The court determined that the rules hadn't been justified by the Superior Court judge that set them.

"Conditions that restrict constitutional rights are subject to special scrutiny to determine whether the restriction is necessary to promote the goals of rehabilitation of the offender and protection of the public," wrote Judge Marjorie Allard. "Before imposing a probation condition that restricts a constitutional right, the trial court must affirmatively consider and have good reason for rejecting any less restrictive alternatives which might be available."

Allard ordered the lower court to issue a new decision on the probation conditions within 90 days, and to provide better justification if the conditions remain.

Johnston is currently incarcerated at the Goose Creek Correctional Center in the Mat-Su. He was sentenced in 2011 to two years in prison followed by five years of probation after pleading guilty to third-degree sexual abuse of a minor.

In December of 2010, when Johnston was 18, he had consensual sex with a 14-year-old girl, according to Allard's decision. An Alaska State Trooper report said Johnston was arrested on a warrant in February 2011 in the southwest Alaska village of New Stuyahok.

Under state law, a person is guilty of second-degree sexual abuse of a minor if they are 17 or older, and have sex with another person 13, 14 or 15 years old who is at least four years younger. At the time, Johnston was "slightly more than four years older" than the girl, the decision said.

Superior Court Judge John Wolfe allowed Johnston's charge to be reduced, to third-degree sexual abuse of a minor, under a plea agreement that came with special probation conditions. One condition said Johnston was not allowed to possess "any sexually explicit material," including movies, magazines, and computer files.

Another condition said Johnston couldn't enter "any establishment whose primary purpose is the sale of sexually explicit materials," which included strip clubs, massage parlors, adult book stores, and websites.

The prosecution argued that the restrictions would help rehabilitate Johnston, comparing them to a condition that banned drinking after an alcohol-fueled crime, Allard wrote in the appeals court decision.

Johnston disagreed, saying that pornography and sexually explicit materials hadn't figured in his crime, according to the ruling.

Nonetheless, Wolfe set the restrictions, "without making any findings or explaining his reasons for doing so," the ruling said.

After Johnston appealed, the state, with appearances from Attorney General Michael Geraghty and Assistant Attorney General Terisia Chleborad tried to justify the rules by referring to studies showing that watching pornography -- especially "violent" pornography -- could slow the recovery of some sex offenders, the appeals court ruling said.

But the studies hadn't been presented to the lower court, and the restrictions went beyond "violent" pornography, Allard wrote.

And according to the decision, the state did not counter Johnston's position that the probation conditions had to stand up to "special scrutiny," since they infringed on his First Amendment freedom of expression.

The appeals court sided with Johnston on that point, and on the broader case, writing that there were "no findings supporting the imposition of these restrictions, and no clarification of what these restrictions mean."

Under the ruling, the lower court now has 90 days to reconsider, and if it chooses to keep Johnston's restrictions, it must properly justify them.

Reach Nathaniel Herz at nherz@adn.com or 257-4311.

 


By NATHANIEL HERZ
nherz@adn.com