Not Motivated to Do Your Homework? Back to Prison for Six Months!

The Seventh Circuit’s opinion last week in United States v. Musso (No. 11-1153) provides a disquieting glimpse of the Orwellian world of supervised release for the sex offender.  Musso served a three-year sentence for possession of child pornography, then began a period of supervised release subject to a special condition requiring him to “participate in an approved sexual offender treatment program” and to “abide by all rules, requirements, and conditions of the treatment program.”  Musso was later found to have violated various of these “rules, requirements, and conditions,” resulting in the revocation of his release and a new six-month term of incarceration.  Here are the horrible things Musso did while he was out:

[A]fter his release from prison, Musso entered a treatment program and signed a contract regarding his responsibilities. The contract stated that Musso would “participate in group discussions, treatment activities, and written assignments” and that “simply showing up for sessions is not enough to be considered cooperative with treatment.”

The contract also required Musso to avoid sexual material, including “[a]ny visual depictions of children engaged in sexual activity,” “[a]ny other visual . . . materials intended for the purpose of causing sexual arousal featuring or describing children in a sexual or erotic manner,” “[a]ny material not generally intended to be erotic, but used by me for the purpose of arousal or other sexual purpose featuring children” (to be identified through therapy), and “[m]aterial showing . . . overt sexual activity involving adults.” The contract further specified that Musso should have no contact with children, except “[r]elatives, with direct eyesight supervision by an adult aware of offense history.”

In August 2010, probation officers conducted a routine search of Musso’s apartment. There, they found a box containing 37 photos of “female erotica.” One of the pictures showed a girl of a questionable age in a bra and underwear. According to the officers’ report, Musso explained that the photos were of women over the age of 18 and that it had been acceptable for him to possess the photos while in prison. Musso said that he had sent the photos to his parents before his release, and his parents recently had returned them to him. Musso’s father later verified this information and surmised that his son had not looked through the box since its return.

The officers also searched Musso’s cell phone and found seven pictures that he had taken at a high school car wash fundraiser. The photos showed Musso’s young nephew with high school girls who were wearing shorts and t-shirts or tank tops. According to the officers’ report, Musso explained that he went to the car wash with his family and that it was the girls’ idea to involve his nephew in the car washing. Musso’s mother later verified this information and also stated that she suggested that Musso take the pictures because she had left her camera in her car.

Also during the search, Musso volunteered that he had recently been helping a female friend, Sarah McBride. Specifically, on several occasions, Musso drove McBride and her infant daughter to the daughter’s day care center while McBride’s car was being repaired. On one occasion, Musso had McBride’s daughter alone with him in his car while McBride test drove another vehicle. McBride later verified this information during a phone interview with a defense investigator.

Around the same time, Musso’s probation officer, Mark Bundren, received information suggesting that Musso was not progressing in therapy. Bundren subsequently requested a summary of Musso’s progress from his therapist, Kristen O’Steen. O’Steen reported in a letter that, while Musso offered appropriate feedback to other group members and was attentive and well-mannered, he “talked in group about superficial personal topics without examining the core issues that brought him to treatment.” Musso “frequently use[d] denial, minimization, and victim stance to avoid accountability for his actions.” He also “lack[ed] motivation to participate meaningfully in group or consistently turn in his treatment homework.”

Based on this information, the government filed a petition to revoke Musso’s supervised release.

You get six months in prison for that?

There’s a lot that strikes me as troubling in this story, beginning with the way that a private contract between a patient and therapist effectively became part of the federal criminal code, its provisions backed up by the threat of imprisonment.  And then there’s the content of the contract, which may be perfectly suitable for a therapeutic program, but which seems an extraordinary invasion of privacy when seen as state-mandated and state-enforced (recall that Musso claimed, and there seemed to be no dispute, that the images he got in trouble for possessing on the outside were actually permitted in prison).  Imagine if a criminal statute banned possession of “any material not generally intended to be erotic, but used by [the possessor] for the purpose of arousal or other sexual purpose featuring children” — here come the thought police!  And then there’s the warped nature of the therapist’s role — she’s supposed to be helping him, but she’s also ratting him out to the court and getting him sent back to prison.  Aren’t there some professional ethical duties of loyalty and confidentiality?  Isn’t it important for therapists to have a relationship of trust with their patients?

In fact, what I find most chilling is the sense that Musso was sent back to prison because his therapist just did not like his attitude.  As a teacher, I’d sure like to be able to threaten incarceration for students who “lack[] motivation to participate meaningfully in group [discussion] or consistently turn in . . . homework,” but that is emphatically not a power I should have.