Statutory Clarity in Community Custody Conditions: Defining “Sexually Explicit Conduct” to Avoid Vagueness

Introduction

In State v. J.H.-M., the Supreme Court of Washington addressed whether a juvenile community custody condition prohibiting engagement with material depicting “sexually explicit conduct”—as defined in former RCW 9.68A.011(4)—was unconstitutionally vague or overbroad. The respondent, the State of Washington, defended a sentencing court’s written order imposing that condition on a minor adjudicated guilty of rape by forcible compulsion. The petitioner, J.H.-M., challenged only the final clause of the condition (the reference to RCW 9.68A.011(4)), arguing it failed to give fair notice of prohibited conduct and delegated excessive discretion to supervising officers.

Summary of the Judgment

The Court held that the condition was not unconstitutionally vague. It reasoned that:

Prior decisions have defined “sexually explicit” with sufficient precision.
The sentencing condition cited a statutory definition that lists specific acts qualifying as “sexually explicit conduct.”
An ordinary person, read in context with case law and the cited statute, can understand the proscribed material.

Accordingly, the Supreme Court affirmed the lower courts’ rulings and upheld the condition.

Analysis

Precedents Cited

State v. Padilla (190 Wn.2d 672, 2018): Held that a community custody condition banning “pornographic materials” with an overly broad definition was void for vagueness.
State v. Bahl (164 Wn.2d 739, 2008): Upheld “sexually explicit material” prohibitions, relying on dictionary meanings and RCW 9.68.130’s statutory definition.
State v. Nguyen (191 Wn.2d 671, 2018): Reaffirmed Bahl’s approach to “sexually explicit material.”
In re Personal Restraint of Sickels (14 Wn. App. 2d 51, 2020): Applied Padilla to strike a similar condition referencing RCW 9.68A.011(4).
State v. Wolff (No. 82806-1-I, 2022): Rejected Sickels’s reasoning and upheld the statutory‐reference condition.

Legal Reasoning

The Court’s reasoning rested on Washington’s two-pronged vagueness test for community custody conditions:

Fair Notice: Would an ordinary person understand what is banned?
Ascertainable Standards: Does the condition guard against arbitrary enforcement?

Key points in the Court’s analysis:

Contextual Reading: Terms should be read in context (the judgment, statutes, and related case law).
Dictionary & Statute: “Sexually explicit” means “clearly expressed sexual” conduct. RCW 9.68.130 reinforces that definition, exempting art or anthropological works. Former RCW 9.68A.011(4) enumerates specific acts, some requiring intent to sexually stimulate the viewer.
Distinction from Padilla: Unlike “pornographic materials,” “sexually explicit conduct” is a distinct term with statutory precision and a legislative preamble emphasizing protection of children without stifling legitimate speech.
Harmonization of Terms: Condition 5 used three different statutory terms (“sexually explicit material,” “erotic material,” and “sexually explicit conduct”). The Court presumed each term has a distinct meaning and gave effect to all three.
Legislative Intent: RCW 9.68A.001 finds that preventing child sexual exploitation does not inhibit lawful scientific, educational, or medical materials.

Impact

This decision clarifies that:

Incorporating detailed statutory definitions into community custody conditions can cure vagueness concerns.
Courts may rely on prior judicial definitions and legislative findings to give ordinary citizens fair warning of prohibited conduct.
Supervising officers receive clear, ascertainable standards, limiting arbitrary enforcement.
Future sentencing courts will feel empowered to impose narrowly tailored sex‐offender restrictions anchored in statute.

Complex Concepts Simplified

Vagueness: A law is vague if people can’t tell what behavior is allowed or forbidden, or if officials have too much freedom to decide on enforcement.
Overbreadth: A law is overbroad if it bans more protected speech than necessary (especially under the First Amendment).
Community Custody: Post‐confinement supervision where courts impose conditions related to rehabilitation and public safety.
Ascertainable Standards: Clear rules that guide supervisors so they don’t act arbitrarily.
Statutory Incorporation: When a court order cites a statute, it adopts the statute’s definitions as part of the order, providing additional clarity.

Conclusion

State v. J.H.-M. establishes that community custody conditions banning “sexually explicit conduct,” when tied to a detailed statutory definition, provide sufficient notice and guard against arbitrary enforcement. By harmonizing judicial precedent, dictionary definitions, and the statute’s enumerated examples, the court avoided the pitfalls of vagueness identified in Padilla. This decision reinforces the principle that clearly anchored statutory language can uphold constitutionally permissible restrictions in sex‐offender rehabilitation and supervision.