Restrictions on Sexual Activity as a Condition of Criminal Probation: An Analysis of Contemporary Probation Practices and Their Legality
Abstract
Despite the Supreme Court’s recognition of procreation as a fundamental right in Skinner v. Oklahoma and subsequent cases, state courts continue to impose probationary conditions on criminal defendants that restrict their ability to procreate or engage in sexual activity. These restrictions, ranging from bans on sex outside marriage to outright prohibitions on reproduction without prior per-mission, have been applied to a wide array of crimes and upheld in some jurisdictions. While sterilization in the criminal context has received some scholarly attention, these broader non-pharmaceutical and non-surgical probationary conditions remain underexplored. This Note analyzes these criminal cases and argues that these restrictions are both constitutionally impermissible and practically unworkable. This Note also produces the first comprehensive survey of all such known cases with these restrictions in nearly two decades, including seven cases where the restrictions were not overturned on appeal, in the process filling in a gap in the literature and examining the troubling intersection of criminal justice, reproductive control, and judicial discretion in probationary sentencing.