Mimesis Law
30 June 2022

Probation Meets Penis: A Hard Condition To Take

February 14, 2017 (Fault Lines) — The “usual” conditions are routinely imposed, even though nobody, from judge to defendant, gives them much thought. For the defendant, he’s just happy that he’s able to sleep in his own bed that night. For the judge, it’s another case off his docket. And what could be less questionable than the “usual”? By that, of course, I mean conditions of probation.

Any defendant who stands before a judge at sentencing is rightly concerned about the length of incarceration the judge might order. Conditions of probation are an afterthought. Too often, those conditions are constitutionally weak, do not promote public safety, add expense to criminal justice and interfere with a defendant’s reintegration to society.

At some point, somebody for reasons likely forgotten, decided it was a good and worthy idea to include a requirement as a usual condition. Some are relatively uncontroversial, like keeping away from the victim. Others make enormous sense under the right conditions, like drug treatment, provided drug abuse or addiction is involved. Of course, if it’s not, that doesn’t mean it’s still not imposed as a condition.

Not every judge is so cavalier about the restrictions placed on probationers, but most, if they’re honest, don’t think long and hard about them. Sure, the conditions have the capacity to make life miserable, even cost a probationer his job, home and family (if you play out how compliance works in the real world), but since it’s not a direct and necessary consequence, it’s easily shrugged off.

But every once in a while,  woke judge decides to stick his nose deep into the conditions and come up with something particularly interesting.

The premarital celibacy restriction imposed by an Idaho judge on Cody Herrera is a case in point. The 19-year-old Mr. Herrera pleaded guilty to statutory rape with a 14-year-old girl. (He told authorities that he has had 34 sexual partners, and prosecutors said that he could face additional charges for allegedly videotaping sexual acts with a 17-year-old.) Mr. Herrera received probation and the judge prohibited him from having “sexual relations” outside of marriage as a probation condition.

That Herrera was sentenced to probation is itself a bit curious, since this wasn’t just a mere statutory rape, but, if the story is accurate, there was coercion, even force, involved. Yet, probation it was, but with a condition. No “sexual relations.” Daniel Hillis, an assistant federal defender from Illinois, raised a host of questions about what that’s supposed to mean. Does that mean no kissing, no hugging, or the full monte?

A vague condition is also a problem for probation officers charged with implementing a court’s order and trying to reintegrate a person into society. One officer might interpret “sexual relations” in a relatively permissive way while another deems the same conduct to be a violation. Potential for inconsistent law enforcement must be avoided. Rather than wondering if a kiss is a violation, probation officers should be able to devote themselves to better things like helping a defendant get a job (a major factor affecting recidivism) or getting a probationer substance abuse or mental health treatment (as drugs and mental issues factor into criminality).

While his point about vague conditions, subject to wildly disparate interpretations (heck, is a bit of “self-love” covered as well?), is well raised, there remain two additional problems that go undiscussed. First, what is the legitimate sentencing purpose for the imposition of this condition. Second, does this go too far. Does it exceed the court’s authority, perhaps even violate the Eighth Amendment’s cruel and unusual clause?

It would seem obvious that the court imposed this condition, no “sexual relations,” to keep Herrera away from women to protect them from being raped or assaulted, a specific deterrent. It would also have a retributive purpose, as it can’t be pleasant for Herrera to be denied something he apparently wants. And as with all sentences, but particularly with those that get some attention for their peculiarity, it serves a general deterrent effect by letting other would-be rapists that they, too, could be denied “sexual relations” should they commit a sex crime.

But is a condition of this sort, to this degree, within the proper ambit of a judge’s authority? After all, if Herrera is a threat to commit rape, what the hell is he doing on probation in the first place?  Moreover, if he’s inclined to rape, what are the chances a condition not have “sexual relations” is going to stop him? The sentence for the second rape alone would be more than sufficient to do the trick. Certainly the probation violation on top of the sentence isn’t going to give him pause.

So, the only person who would concern himself with such a condition would be the guy who is inclined to be compliant. In other words, the guy who you don’t have to fear because he’s learned his lesson.

But this condition goes far beyond the mere legitimate sentencing purposes of general and specific deterrence and some retribution. What if Herrera meets a wonderful person, develops a deep, respectful and loving relationship, and, well, you know. What business is it of the judge’s to stick his nose under their covers, provided it’s all consensual?

And even if Herrera is not so fortunate as to find “the one,” if he happens to meet someone interested, for whatever reason, in engaging in “sexual relations” with him, again consensual, why should he be denied that pleasure? At this point, there being no other legitimate sentencing purpose served, it’s pure retribution, the denial of sex as a means of making Herrera especially sorry for what he did.

What if somebody loved bacon, stole a rasher or two, and was sentenced to being a vegan? The potential for unusual conditions which serve mostly to make a person’s life miserable are only limited by the things a person enjoys enough to miss if they’re denied. Should the con man suffer a condition the prohibited him speaking?

For a 19-year-old guy, being prohibited from engaging in sexual relations is a pretty big, and very onerous, condition. It’s not that there will be a great deal of sympathy for him, given that he was sentenced to probation for a sex crime, but that the impact of such a firm condition strikes in places that will hurt badly in the absence of sex. You’re only 19 once, you know. Even if you’re a hard judge.

2 Comments on this post.

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    14 February 2017 at 10:00 am - Reply


    You write: “What if somebody loved bacon, stole a rasher or two, and was sentenced to being a vegan?”

    You must be a pervert to even think of such a thing. Some f…… judge would have to take bacon from my cold, dead hands before I would give up my BLT.

    Now, Imagine me standing with a fistful of bacon in my right, raised hand in front of a roaring crowd . . . I think you have started a movement.*

    All the best.


    *Think of the death panels.

    • shg
      14 February 2017 at 10:02 am - Reply

      You will be the icon of a great and popular movement. The Bacon March! We need to come up with cool hats.