Specially Assigned, dissenting.
It has been well and truly said that the law “sharpens the mind by narrowing it.”11 Nowhere is this more apparent than in legal disputes over language, where even terms like “sexual relations” have been famously parsed to the point of absurdity.12 Therein lies the conundrum. Fairness requires clarity — especially when a defendant’s liberty is at stake — but meaning is inherently subjective. The challenge for lawyers and judges, therefore, is to accommodate the limitations of language with the requirements of a common understanding.
¶ 26. The majority concludes that the law failed, in this case, to meet that challenge. It holds that defendant’s probation condition requiring that he inform his probation officer of any person “with whom you are planning to have . . . or . . . planning to begin a dating, sexual or romantic relationship” was impermissibly “vague as applied to the facts before us.” Ante, ¶ 16. It is fair, therefore — indeed it is essential — that the majority explain how this provision fell short on the facts presented and known to defendant. In this regard, it is the majority’s analysis, not the probation condition, that appears to be wanting. I therefore respectfully dissent.
¶ 27. As the majority accurately recounts, the probation condition at issue was imposed by the trial court in late August 2013. Shortly thereafter, in late October 2013, defendant submitted to a routine polygraph examination to determine his compliance with the probation conditions. Five months later, in March 2014, defendant submitted to another polygraph examination. After he failed a pretest question about having “sexual contact” with anyone since the last examination, defendant told the examiner that he had had sex with the person that cleans his house “three *467times” since the last polygraph examination, that is, during the five months between late October 2013 and late March 2014. Defendant acknowledged that he had a friendship with, and a great respect for, the woman in question, and regularly confided in her. The housekeeper also testified that defendant had been for three years “one of the very best friends that I’ve ever had,” and that they had had sex before the incident that led to the violation.13 Although the majority notes that her recollection was that the prior sexual contacts were “a long time ago,” she acknowledged that it was “within the year.”
¶28. Thus, by defendant’s own admission he had sex three times within a period of five months with a woman he knew well and considered a Mend. At the hearing, defendant also acknowledged that he had sex with his housekeeper “other than on that one occasion,” although he stated that “I think it was outside the parameters of this condition.”
¶ 29. While the majority is correct that the trial court made no explicit finding on the timing of the prior sexual contacts, it is not accurate in describing its holding as “based on the occurrence of only one sexual encounter after the date the probation condition was added.” Ante, ¶ 7. The court simply observed that “they’ve had sex before, . . . [s]he was in his house regularly, they had a close and comfortable relationship with one another,” and thus conclude that defendant should have known that he was required to inform his probation officer of the relationship.
¶ 30. In defining “sexual relationship” the majority cite with approval dictionary definitions “support[ing] an interpretation that suggests something more significant than a single encounter, such as an emotional or other connection between people or a connection, association, or involvement.” Ante, ¶ 13 (citations omitted). This would seem to fit the facts here quite closely. The record showed plainly that defendant’s relationship with his housekeeper was much more than “a single encounter,” and — call me old-fashioned — but both parties described what could reasonably be called an intimate or “emotional connection.” Thus, under the majority’s own definition it is reasonable to conclude that defendant had a “sexual relationship” with his housekeeper over a period *468of at least five months, including the time period when the probation condition requiring notice to his probation officer was in place.
¶ 31. The majority also questions whether the “planning” requirement of the probation condition was satisfied, noting that it “connote[s] some period of time during which an individual contemplates taking action, contrary to the type of spontaneous decision-making that occurred here,” ante, ¶ 17, and further observes that “defendant did not plan the sexual encounter with his housekeeper.” Ante, ¶ 19; see also ante, ¶ 21 (“The concept of planning is inconsistent with the concept of a chance sexual encounter.”). The argument, however, fundamentally betrays the majority’s earlier definition of a “sexual relationship” as consisting of something decidedly more than a one-night stand or chance encounter. Thus, the question here is not whether defendant should have informed his probation officer before engaging in the sexual “encounter” with his housekeeper but instead whether he should have informed his probation officer before engaging in a sexual “relationship” with his housekeeper. Given the span of time in which defendant admittedly engaged in sex with a woman he considered a friend and confidant, providing notice to his probation officer of the relationship would not seem to have been a difficult, confusing, or unreasonable requirement.
¶ 32. The majority’s own reasoning, therefore, leads ineluctably to the conclusion that the probation condition afforded defendant reasonable notice of its requirements, which he violated by failing to inform his probation officer of the sexual relationship with his housekeeper.
¶ 33. I would go farther, however, and hold that the probation condition applied even to a “single” sexual encounter, regardless of the duration or intimacy of the relationship, and that defendant plainly violated the condition. Context is critical. In 2009, defendant was convicted of aggravated domestic assault, unlawful trespass, engaging in a prohibited act, and violation of an abuse-prevention order. His original probation conditions included sex-offender treatment and noncontact with certain persons. He was found to be in violation of probation twice, once in 2010 as a result of improper contact with his former wife, and again in 2013, for again being in contact with a woman who was on his restricted list, and for failing to participate in sex offender treatment.
*469¶ 34. The second violation led to the imposition of the stricter condition at issue here. Indeed, at the merits hearing in this matter, defendant was asked: “And the purpose of those stricter conditions were, is it fair to say, based on an unwise inappropriate relationship with a former sexual partner, is that fair to say?” Defendant answered, ‘Yes.” The follow-up question to defendant was: “And was it your understanding that these stricter conditions were a direct result of that inappropriate unwise relationship?” Defendant again responded, ‘Yes.”
¶ 35. The record here shows that the stricter probation condition in question was imposed as a result of defendant’s earlier, improper contacts with women, and leaves little doubt that defendant understood that its purpose was precisely to bar any future sexual contacts without prior approval. While the language and phrasing of the condition was not entirely artful, syntactic perfection was not required. The question is simply whether the condition afforded defendant “fair notice as to what acts constitute a violation of his probation.” State n Peck, 149 Vt. 617, 619, 547 A.2d 1329, 1331 (1988) (emphasis added). There is no practical doubt that defendant appreciated that his failure to notify his probation officer before a planned sexual intimacy would violate Condition 45, and there is no doubt that, at least at the moment of this wholly consensual and anticipated intercourse, his intentional intimacy with the housekeeper was “planned” in the common meaning of that term in service to the obvious protective purpose of the prohibition. Accordingly, defendant was on fair notice, and the judgment should be affirmed on this basis, as well.
¶ 36. I am authorized to state that Chief Justice Reiber joins this dissent.
This quotation is commonly attributed to Edmund Burke, as paraphrased by Justice Holmes. See O. W. Holmes, Jr., Address at Brown University Commencement, 1897, in 3 The Collected Works of Justice Holmes 518 (Sheldon M. Novick, ed., 1995).
See What Clinton Said, Wash. Post, Jan. 26, 1998 (quoting President Clinton’s statement: “I did not have sexual relations with that woman.”).
The woman’s recollection was of two sexual contacts, while defendant’s recollection was three, but it is defendant’s understanding of what constitutes a “sexual relationship” that is principally relevant here!