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The Courts of Appeal building in Annapolis. (The Daily Record File)
A sentencing judge did not violate a convicted child sexual abuser’s fundamental right to parent by requiring — as a condition of probation — that his visits with his preschool-aged son be supervised, even though the abuse was not of his son but of a 10-year-old girl not related to him, Maryland’s top court has unanimously ruled.
The Court of Appeals said the restriction on Troy Robert Allen’s asserted constitutional right was “reasonable” and had a “rational connection” to preventing another incident of child sexual abuse.
“We have recognized that the fundamental right to raise one’s child is not absolute, and the right must frequently cede to the state’s interest as parens patriae in caring for those, such as minors, who cannot care for themselves,” Judge Michele D. Hotten wrote for the high court in the decision, filed last week.
“Regarding the nature of probation, this court has acknowledged that probationers do not enjoy the breadth of constitutional rights that are enjoyed by law-abiding citizens,” Hotten added. “Rather, in an act of leniency by the court, the probationer voluntarily agrees to certain limitations of his or her rights, which the court is fee to impose in its discretion.”
In its 7-0 decision, the Court of Appeals rejected Allen’s argument, through counsel, that restrictions on the right to parent are valid only if they clear the “heightened” constitutional hurdle of being narrowly tailored to achieving a compelling governmental interest. The court’s probationary order of supervised visitation was not narrowly tailored because it impinged on Allen’s parental relationship with his son when his criminal conduct was against a girl, and one who was not related to him, Allen added in vain.
“[A]s a matter of sound policy, conditions of probation should not be subjected to the heightened scrutiny called for by petitioner [Allen] – requiring a sentencing court to tailor conditions of probation to the peculiar sexual desires of a child sex offender,” Hotten wrote, noting studies showing that abusers do not necessarily limit their behavior to a specific gender or non-family members.
“While we do not opine on the frequency with which ‘crossover’ occurs, our holding allows the sentencing court, when faced with the protection of minors at the expense of parental rights, to exercise its discretion in furtherance of the former,” Hotten added.
Maryland Attorney General Brian E. Frosh’s office said in a statement, “We are pleased that the Court of Appeals affirmed the trial court’s imposition of reasonable probation conditions that help protect the public.”
A Wicomico County Circuit Court jury found Allen guilty in 2014 of sexual abuse of a child household member; third- and fourth-degree sexual assault; and second-degree assault in the abuse of his girlfriend’s 10-year-old daughter at the Salisbury home the three shared with his son. Allen was sentenced to 46 years in prison, with all but five years suspended, followed by five years of supervised probation.
That probation carried the additional condition that he have no unsupervised contact with minors, including his son, prompting Allen to appeal.
The intermediate Court of Special Appeals upheld the condition of supervised contact with the son, saying it was “sufficiently related” to his earlier “sexual assault of a child residing in [his] household.”
The Court of Appeals subsequently adopted the reasonably related standard but added that the supervised-visitation condition would have passed constitutional muster even under the narrower test Allen sought.
The condition “was narrowly tailored in the sense that it prevented only unsupervised contact with [the son], and only lasted during [Allen’s] five-year probationary term,” Hotten wrote.
Allen’s appellate lawyer, public defender Allison P. Brasseaux, did not return a telephone message seeking comment Wednesday.
The high court rendered its decision in Troy Robert Allen v. State of Maryland, No. 92, September Term 2015.
