Washington court: Prison can bar sex offender from writing to his niece

Friday, December 17, 1999

The Washington Department of Corrections can prohibit a convicted sex offender from writing to his 11-year-old niece without violating his First Amendment rights, a state appeals court has ruled.

Prisoner Robert L. Arseneau filed a personal restraint petition to the state appeals court, asking the court to strike down the prohibition preventing him from writing to his niece.

Arseneau claimed that the prohibition violated his free-speech rights under both the U.S. and Washington constitutions.

The Corrections Department prohibited Arseneau from contacting his niece, who lives with Arseneau's mother, because he was convicted of four counts of first-degree incest for sexually abusing his stepdaughter for 13 years, beginning when she was 5 years old.

A June 1996 policy allows prison officials to restrict contact between a prisoner and “an individual or class of individuals [that] has/have been victimized by the offender.”

Arseneau argued that the prohibition was unlawful because he had never sexually abused his niece.

However, the Washington Court of Appeals ruled in In Re Arseneau that the prohibition was constitutional.

The appeals court in its Dec. 13 opinion analyzed the prohibition under the standard articulated by the U.S. Supreme Court's 1974 decision in Procunier v. Martinez.

In Martinez, the high court struck down a California Department of Corrections regulation that allowed prison officials to censor outgoing inmate mail that “expressed inflammatory political, racial [and] religious views” or mail that was “otherwise inappropriate.”

The high court in Martinez held that censorship of outgoing prisoner mail was constitutional if the regulation:

  1. Furthered a substantial governmental interest unrelated to the suppression of free expression.
  2. Was no broader than necessary to protect the substantial governmental interest.

The Washington Department of Corrections argued that the appeals court should apply the more lenient standard laid down by the U.S. Supreme Court in another prisoner First Amendment case, Turner v. Safley. In Safley, the high court held that a prison regulation that affects prisoners' First Amendment rights is constitutional as long as it is reasonably related to a legitimate penological interest. Turner concerned regulations on correspondence between inmates.

However, the Washington appeals court ruled that Martinez was the controlling case because it involved inmates' outgoing correspondence.

Applying the Martinez standard to Arseneau's case, the state appeals court determined that the prison officials had two substantial interests: protecting the 11-year-old girl from “grooming” behavior on the part of Arseneau and the rehabilitation of Arseneau.

The court said “grooming” referred to “behavior which tends to make a potential sex-abuse victim comfortable and to gradually sexualize the relationship.” Prison officials and the court feared that if Arseneau were allowed to contact his niece, he could engage in this behavior.

Secondly, the court said that the prohibition furthered the prison's interest in forcing Arseneau to refrain from behavior that would place him “at risk to re-offend.” The court had no trouble finding that both of these interests were unrelated to the suppression of free expression.

Next, the court said that the prohibition was not too broad. “Arseneau also has alternate means to exercise his First Amendment rights,” the court wrote. “He can write and associate with other family members who do not fall into his class of victims.”

The court concluded that the “restriction was narrowly tailored to meet the concerns facing the prison.”

Dennis Ott, Arseneau's attorney, criticized the court's opinion. “My client's mother has arthritis and his niece helps the mother to communicate with her son,” he said. “The Department of Corrections has essentially cut off communication between my client and his mother.”

Ott was pleased, however, that the appeals court applied the stricter standard of the Martinez case rather than the lower standard in Turner. “That is a very important precedent,” he said.

A call placed to the attorney general's office was not returned.