{¶ 23} I dissent. I recognize that judicial release has been characterized as a matter of grace, an opportunity for early release that comes with conditions, but any condition must be narrowly tailored to withstand constitutional scrutiny and must be both reasonable and enforced in a rational fashion.
{¶ 24} The condition placed upon Eversole, although related to his crime, was overly broad and constituted a substantial interference with sexual contact between consenting adults. Supervision conditions "`cannot be overly broad so as to unnecessarily impinge upon a probationer's liberty.'" State v. Talty, 103 Ohio St.3d 177,2004-Ohio-4888, 814 N.E.2d 1201, ¶ 13, quoting State v.Jones (1990), 49 Ohio St.3d 51, 52, 550 N.E.2d 469. Accordingly, we should apply a reasonableness test to judicial release sanctions that interfere with fundamental rights. This reasonableness requirement is, in fact, prong one of the three-part test adopted by the Ohio Supreme Court inJones. Although a probation case, Jones has been consistently applied to judicial release supervision — i.e., community control.
{¶ 25} Is it rational to place supervision of such an intimate decision in the hands of the state? No, absolutely not. It also can best be characterized as unseemly in its enforcement. The condition tasked Eversole's probation officer with giving her imprimatur to high-risk sexual behavior. Although the majority suggests that another goal of the probation condition may have been to remind the participants of safe sexual practices, this was not done by the probation officer, nor was she qualified to dispense such advice. This endeavor is not a function that the adult probation department should undertake, and nor should the judge himself. The behavior demeans the judicial function. Although there is a legitimate state interest in reducing the spread of HIV and a legitimate desire to supervise Eversole so as to prevent future similar crimes, there are other more reasonable ways to accomplish such goals. For example, counseling, education, and health-care services would be more beneficial to the rehabilitative goal of community control. It was unreasonable to require Eversole to bring his sexual partners to the probation department office in order to secure the blessing (approval) of the court to engage in high-risk sexual behavior. The record reflects that the probation officer simply granted oral approval when two females sought the court's approval. This condition was obviously not carefully or narrowly tailored. Nor was it rationally enforced.
{¶ 26} Even if such a broad condition regarding the monitoring of sexual behavior of those with HIV were constitutional in the first instance, which seems *Page 298 doubtful, the condition should be restricted to sexual conduct and not prohibit all forms of sexual contact. The statutory definition of sexual contact includes some activity that arguably may not create a risk of exposure to HIV.
{¶ 27} A condition that is well intentioned and designed to both rehabilitate Eversole and protect society does not alone make the condition reasonable and appropriate. It cannot be ignored that the condition required individuals (Eversole's sexual partners) not subject to the court's jurisdiction to come before the court personally in order to disclose their most intimate intentions.
{¶ 28} I would find on this record that revocation was an abuse of discretion. The purpose of the suspect condition was met as Hutchins knew full well of Eversole's HIV status; thus, Eversole did not violate the law, nor did Eversole endanger an innocent individual. Was there a technical violation of the condition? Yes, clearly. But the condition requiring court approval of sexual contact is unwise and unreasonable in the first instance.
{¶ 29} Additionally, Hutchins had his own pre-existing intimate relationship with Eversole preincarceration. He knew then that Eversole had HIV and admitted videotaping his girlfriend, LeMaster, having sex with Eversole. (She was one of two women who obtained prior court approval for sexual contact. Hutchins, however, testified that he would not have sought such prior court approval.) It is questionable whether Hutchins, who was previously involved in sexual contact and conduct with Eversole, should have fallen under the purview of such a condition in the first instance. Furthermore, this record reveals that Hutchins complained to the court only once LeMaster deserted him for Eversole. As noted, Hutchins was, in fact, videotaping and encouraging the relationship between LeMaster and Eversole, knowingly and unabashedly choosing to enter into such high-risk behavior himself even after Eversole's initial imprisonment.
{¶ 30} Under these circumstances, there was no valid or lawful reason for Hutchins to secure the court's permission to continue high-risk behavior of his own choosing or for the trial court to seek to protect him. On these facts, Eversole should not be penalized with re-imprisonment. I would reverse the judgment of the trial court.
WILLIAM H. WOLFF JR., J., retired, of the Second District Court of Appeals, sitting by assignment. *Page 299