Can Sex Offenders Watch Adult Porn While on Probation?

By: John Guidry

Florida has lots of folks on probation. For the fiscal year 2013-2014, the Department of Corrections supervised 143,809 citizens. It costs the state $1,825/year to supervise each person, yet Florida only recouped a fraction of that expense. Yes, crime pays—or at least, it costs the taxpayers dearly.

Many of these probationers are sex offenders. To qualify for this label, you sometimes need do nothing more than look at naked 16-year-olds on your computer. Yet, sex offenders face far more conditions than “standard” probationers who may have shot, stabbed, or robbed someone at gunpoint.

A sex offender must have a curfew, cannot live within 1,000 feet of a school or park, must pass annual polygraphs, and must keep a driving log. But the most confusing condition is the ban on pornography.

Most probation officers think this is a blanket ban. They believe a sex offender cannot possess any pornography. They are wrong.

Is your Probation Officer threatening to violate you for legal adult material?

Don’t let them make up the rules. Call John today at (407) 423-1117.

The Legal Breakdown: The “Deviant Behavior” Rule

Florida Statute 948.30(1)(g) bans sex offenders from possessing pornographic material, but with a major catch. The statute says the prohibition applies to material that is:

“…relevant to the offender’s deviant behavior pattern.”

Unfortunately, many probation officers simply don’t understand the law (shocking, I know). They see a Playboy magazine and write up a violation warrant. Thankfully, the courts have stepped in to correct them.

1. The Supreme Court Speaks: Kasischke v. State

In Kasischke v. State, 991 So. 2d 803 (Fla. 2008), the Florida Supreme Court clarified that the law does not prohibit a probationer from possessing all pornography. It only prohibits materials that are specifically relevant to the behavior that got them in trouble in the first place.

2. The “Adolescent Theme” Test: Sellers v. State

The 5th DCA (which covers Orange and Seminole counties) took it a step further in Sellers v. State, 16 So. 3d 225 (Fla. 5th DCA 2009).

• The Facts: Sellers was on probation for possession of child pornography. He was caught with adult pornography (no children depicted).
• The Ruling: The court overturned his violation. They ruled that material is only relevant to his deviance if it actually depicts children or contains a “puerile or adolescent theme.” Adult consensual sex did not fit that description.

3. The “Gender” Argument Fails: Bauer v. State

The case of Bauer v. State, 96 So. 3d 1063 (Fla. 4th DCA 2012), provides the deepest analysis yet.

• The Facts: Bauer was convicted of fondling an 11-year-old girl. Probation found a DVD in his home depicting consensual sex between adult males and adult females.
• The State’s Argument: The prosecutor argued that because the DVD depicted females and his victim was female, the porn was “relevant.”
• The Ruling: The court rejected this logic as absurd. They noted that unless the State provides expert testimony, adult sexual intercourse is not “relevant” to the deviant act of molesting a child. The court stated that the DVD would only be a violation if it depicted minors or non-consensual acts.

John’s Takeaways

This is a tricky area of law, and I am not suggesting anyone poke the bear. However, if you are facing a violation, you need to know your rights:

• It’s Not a Blanket Ban: Unless your specific treatment plan says otherwise, Florida law generally permits the possession of legal, adult pornography if your original crime did not involve adults or force.
• The “Relevance” Requirement: The State cannot just say “Porn is bad.” They must prove, often with expert testimony, that the specific material found connects to your specific “deviant behavior pattern.”
• Judges Must Explain Why: Under Smith v. State (49 So. 3d 833), a judge cannot just find you guilty of a violation. They must make specific findings describing the material and how it relates to your deviance. If they don’t, we appeal.
• Probation Officers Get it Wrong: Do not assume your PO knows the nuances of Sellers or Bauer. They are trained to enforce rules, not interpret appellate case law. That is my job.

Know Where You Stand

And there you have it. Sex offenders cannot live where they want. They cannot find employment. They cannot drive a car by themselves. But under Florida law, unless it relates to their specific crime, they can watch adult porn.

If you have been accused of violating probation for possessing legal materials, do not just accept the prison time.

Call me at (407) 423-1117. Let’s fight the violation.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.