In Commonwealth v. Riz, the Court of Appeals vacated a special condition of probation that was imposed on the defendant, requiring that he “not ‘minimize’ his crimes during sex abuse treatment, in contact with church authorities, and in dealing with his probation officer.” The facts are as follows:  The defendant was convicted of sexual abuse of his teenaged niece on multiple occasions. “The final instance of abuse occurred on May 8, 2011. At his jury trial …, the defendant testified that he was drunk on the night of May 8, denied having any sexual contact with the victim, and claimed that the confession that he had made to the police was the product of his intoxication.” “At sentencing, defense counsel told the judge, inter alia, that the defendant was from Guatemala, had developed some alcohol and marijuana problems, and had ongoing and strong involvement with his church. She further advised that the defendant had grown up in a different culture, and that ‘there is a certain amount of early sexual activity that goes on in the area of the world where he comes from…. That is what he was familiar with.’” The judge sentenced the defendant to concurrent prison terms and a term of probation, which included a special condition “that the defendant was ‘not to minimize his crimes during treatment, with church activities, or with probation.’ The judge sought to clarify this condition by stating: ‘In other words, the defendant is not to minimize his crimes involving the victim … during his sex abuse treatment. He’s also not to minimize his criminal activity in his contact with church authorities — I can’t believe the church would knowingly put him with children if they knew the extent of his criminal involvement — and he’s not to minimize his criminal involvement in dealing with the probation officer.’” On appeal, the defendant challenged the special condition, claiming that its requirement that he was “‘not to minimize his crimes’ violated due process.” He “argued that neither he, nor his probation officer, nor the court itself, had sufficient guidance as to what acts or statements would constitute a violation of the condition at issue” and “that absent further definition of the term ‘minimize,’ or clearly delineated examples of violative and nonviolative statements, the condition was impermissibly vague.”

The Court of Appeals agreed with the defendant and stated “that the special condition … did not provide reasonable guidance with respect to what conduct was prohibited” and, therefore, violated the due process clause of the Fifth and Fourteenth Amendments. The Court cited as problematic the fact “that even truthful representations of the facts by the defendant could be deemed to be prohibited by the condition. For example, if the defendant were to state truthfully that he had a drinking problem and was intoxicated at the time of some of the incidents, that could well be perceived as minimizing the severity of the crime, minimizing his intent, or minimizing his relative culpability…. At a minimum, the condition was equivocal.” Therefore, the Court vacated the special condition and remanded the case to the trial court “for consideration whether more clearly defined conditions of probation should be imposed.”


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