Federal Judge: Sex Offender May Be Barred From Going Online

A sex offender who used the Internet to lure young victims and traffic in child pornography may be barred from using a computer or any other device with online capabilities, even in the performance of his job, a New York federal judge has held. The ruling comes in the latest in a series of cases where judges have struggled with the legal, pragmatic and appropriate Internet restraints that may be imposed as a condition of probation or parole.

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A sex offender who used the Internet to lure young victims and traffic in child pornography may be barred from using a computer or any other device with online capabilities, even in the performance of his job, a federal judge has held. Northern District Judge Thomas J. McAvoy distinguished the case of Jeffrey A. Johnson from those of two other convicts whose Internet-restrictive conditions were stricken by the 2nd U.S. Circuit Court of Appeals. With Johnson, the court found, the risk of re-offending is too great to allow him to surf in cyberspace. U.S. v. Johnson, 97-CR-0206/ 98-CR-160, is the latest in a series of cases where judges struggle with the legal, pragmatic and appropriate Internet restraints that may be imposed as a condition of probation or parole. Courts have made clear that it makes no more sense to deny an offender Internet access because he or she used the Internet to facilitate a crime than it does to bar a wire fraud perpetrator from using the telephone. They have also made clear that the Internet is a far different tool from any of its communication predecessors. The 2nd Circuit has addressed the issue at least twice. On both occasions it reversed trial courts that had restricted Internet access. U.S. v. Peterson, 248 F.3d 79 (2001), dealt with a bank robber who had previously been convicted of incest. As a condition of his release, he was restricted in his use of a computer and access to the Internet. The circuit found the restrictions overly broad and not reasonably related to the convict’s crime. One year later, in U.S. v. Sofsky, 287 F.3d 122 (2002), the 2nd Circuit decided a case in which the defendant had been convicted of receiving and trading child pornography over the Internet. The district court had prohibited him from using a computer, accessing the Internet or using an online bulletin board without the approval of his probation officer. The circuit said the conditions inflict “a greater deprivation on [the defendant's] liberty than is reasonably necessary” given the importance of the Internet in modern society. Last week’s Johnson case, McAvoy said, differs significantly from both Peterson and Sofsky. Peterson involved a thief who, although he had previously been convicted of incest, had not used a computer or the Internet to facilitate his sexual offense, McAvoy said. McAvoy also said the distribution of child pornography, which was the nature of the offense in Sofsky, is a different and in some regards lesser crime than that perpetrated by Johnson. Unlike Sofsky, the court observed, Johnson enticed minors to engage in physical conduct and made arrangements online to meet them. Johnson traveled considerable distances to rendezvous with the children he enticed and engaged in physical contact with minors, court records show. He pleaded guilty to travel with the intent to engage in a sexual act with a minor, interstate transportation of pornographic material, coercion and enticement of a minor and other charges. Johnson was sentenced to an 88-month sentence, followed by three years of supervised release. Crucial to McAvoy’s ruling was evidence that Johnson had relied on the Internet to commit his crimes, shows little indication that he appreciates the risk he presents to children and has shown signs of re-entering the offense cycle. A footnote in the decision observes that Johnson recently took out a newspaper personal ad seeking a female adult for oral sex. “Although Defendant certainly is entitled to seek out and engage in a ‘normal’ adult relationship, it is entirely unclear that Defendant’s meeting with this woman was ‘normal,’ rather than for purposes of sexual gratification only,” the judge wrote in the footnote. “There is no evidence that Defendant made any effort to develop a lasting relationship.” TREATMENT GOALS The court observed that mental health experts testified that allowing Johnson access to the Internet would not further the aims of his treatment. “Proper treatment requires that Defendant first understand the motivations for his crime and his offense cycle and that he develop and respond to the appropriate internal and external controls before he be placed in a risky situation,” McAvoy wrote. “There is no evidence that Defendant has accomplished this.” McAvoy said he is conscious of the fact that Johnson is an educated person in a technical field where Internet access would be helpful. He said the court “is interested in assisting Defendant in resuming a positive lifestyle” and made clear that the current restrictions will remain in place “until such time as the Court is provided with sufficient information upon which to conclude that Defendant should be entitled to Internet access.” The judge noted that he is not permanently banning Johnson from using a computer and expressed a willingness to reconsider the order if new evidence warrants it. The case was prosecuted by Assistant U.S. Attorney Thomas Spina Jr. Kevin E. McCormack of Syracuse, N.Y., appeared for the defendant.

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