Court Finds “Where Minors Congregate” Unconstitutionally Vague

State v. Irwin (2015)

by David S. Marshall

The Washington Court of Appeals has held that an order not to “frequent areas where minor children are known to congregate” is unconstitutionally vague.

Irwin was convicted in Spokane County, Washington, of three counts of child molestation and one count of possession of depictions of minors engaged in sexually explicit conduct. Along with a sentence of imprisonment, he received four months of community custody for the child molestation convictions.

On appeal, Irwin challenged two conditions that the court imposed as a part of his community custody. The first condition was that Irwin must not “frequent areas where minor children are known to congregate,” as defined by his Community Custody Officer.

The court of appeals will reverse a community custody condition if the condition is “manifestly unreasonable.” Whenever a condition is unconstitutional, it is necessarily manifestly unreasonable.

Under the Fourteenth Amendment to the United States Constitution, as well as Article I, section 3 of the Washington State Constitution, criminal laws must not be vague. A law is vague if it does not provide ordinary people with fair warning of what conduct is prohibited, and if it lacks definite standards to prevent it from being enforced arbitrarily.

Washington case law holds that community custody conditions requiring CCOs to further define conditions are unconstitutionally vague. Conditions requiring further definition by CCOs basically acknowledge that the condition does not have definite standards for enforcement.

The court in Irwin’s case held that the condition is unconstitutionally vague because prohibiting someone from frequenting places “where children are known to congregate” is unclear. The condition does not include examples of where children are known to congregate, such as parks, bowling alleys, shopping malls, theaters, churches, hiking trails, or other public places where children might be present.

Without clarifying language, it is not easy for an ordinary person to know what places are off-limits. The appellate court therefore struck the condition and reversed and remanded for resentencing.

The second condition that Irwin challenged prohibited Irwin from possessing or maintaining access to a computer unless authorized by the CCO. He argued that it was unconstitutionally broad and not crime-related. However, the court disagreed and held that the prohibition was directly related to the crime of possession of depictions of minors engaged in sexually explicit conduct.