Probation condition did not prohibit chance sexual encounter.

State v. Galanes, 2015 VT 80 (12-Jun-2015)


DOOLEY, J. Defendant appeals an order concluding that he violated a condition of his probation requiring him to notify his probation officer if he is planning to begin a sexual relationship. We reverse.

Defendant was convicted of several felony and misdemeanor offenses and placed on probation. with conditions regarding sexual relationships. Included in the list of conditions was Condition 45, which 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.

The trial court found defendant violated the condition when he had a sexual encounter with his housekeeper after he came out of the shower in a towel while the housekeeper was in the bedroom folding laundry. The trial court said, “[this is] the kind of thing that [defendant] should have anticipated happening, in light of the fact that they’ve had sex before.”

Viewed as a whole, the condition does not appear to apply to this chance sexual encounter. The term “sexual relationship” seemingly requires an association of greater duration and multiple sexual encounters. The concept of “planning” is inconsistent with the concept of a chance sexual encounter.

We therefore hold that Condition 45 did not give defendant fair notice that his conduct would violate the condition and be grounds for revocation of his probation. Accordingly, we must reverse the trial court’s decision to revoke defendant’s probation for violation of this condition.

BURGESS, J. (Ret.), Specially Assigned, dissenting. It has been well and truly said that the law “sharpens the mind by narrowing it. Nowhere is this more apparent than in legal disputes over language, where even terms like “sexual relations” have been famously parsed to the point of absurdity. Therein lies the conundrum. Fairness requires clarity—especially when a defendant’s liberty is at stake—but meaning is inherently subjective. The challenge for lawyers and judges, therefore, is to accommodate the limitations of language with the requirements of a common understanding.

The question here is not whether defendant should have informed his probation officer before engaging in the sexual “encounter” with his housekeeper but instead whether he should have informed his probation officer before engaging in a sexual “relationship” with his housekeeper. The housekeeper also testified that defendant had been for three years “one of the very best friends that I’ve ever had,” and that they had had sex before the incident that led to the violation. Under the majority’s own definition it is reasonable to conclude that defendant had a “sexual relationship” with his housekeeper during time period when the probation condition requiring notice to his probation officer was in place.

Accordingly, defendant was on fair notice, and the judgment should be affirmed on this basis, I am authorized to state that Chief Justice Reiber joins this dissent.