Colorado SOMB Approved Standards Revisions Sexual Offense History Questions

8-19-16 Colorado:

Source Colorado SOMB Announcement:

Greetings,

On August 19, 2016, the SOMB approved revisions to the Standards and Guidelines as they pertain to sexual offense history questions, including sexual offense history polygraph questions. These revisions apply to Standards and Guidelines for adult sex offenders and juveniles who have committed sexual offenses.

All current Standards and Guidelines related to requirements for sexual offense history questions, including sexual offense history polygraph questions, are unchanged. The following revisions apply only when an adult sex offender or a juvenile who has committed a sexual offense refuses to answer such questions.

Below you will find three recent court decisions that support a client's right to refuse to answer sexual offense history questions, including sexual offense history polygraph questions. These decisions have necessitated the revised language to the Standards and Guidelines as follows:

"If the offender refuses to answer sexual offense history questions, including sexual offense history polygraph questions, then the provider shall meet with the supervising officer to identify and implement alternative methods of assessing and managing risk and needs. The provider shall not unsuccessfully discharge an offender from treatment for solely refusing to answer sexual offense history questions, including sexual offense history polygraph questions."

The revisions are implemented, where applicable, throughout the Standards and Guidelines for adult sex offenders as well as for juveniles who have committed sexual offenses. You are encouraged to review the attached documents carefully. You are welcome to submit proposed changes to be considered as the revision process moves forward. In addition, as questions arise, please do not hesitate to contact us.

Thank you.

---

People vs. Robertson
People vs. Ruch
US vs. VonBehren

---

People v Rebulloza

3-2-15 California:

People v Rebulloza

Defendant Juan Jose Rebulloza pleaded no contest to one count of indecent exposure for exposing himself on a street corner in San José. The trial court granted a three-year term of probation to include one year in county jail as a condition of probation.

Among other conditions, the court ordered defendant to complete a sex offender management program as mandated by Penal Code section 1203.067. Under subdivisions (b)(3) and (b)(4) of that statute, the court ordered defendant to “waive any privilege against self-incrimination and participate in polygraph examinations which shall be part of the sex offender management program” and “waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the probation officer.”

Defendant challenges the constitutionality of these two waivers.1

First, we hold that the condition requiring a waiver of the privilege against self-incrimination is prohibited by the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420 (Murphy).

Second, we construe the waiver of the psychotherapist-patient privilege as requiring waiver only insofar as necessary to enable communication between the probation officer and the psychotherapist.

We hold that the waiver of the psychotherapist-patient privilege as construed in this fashion is not overbroad in violation of defendant’s constitutional right to privacy.

...

State v IT

3-12-2014 Indiana:

State v I.T.

I.T., who admitted to conduct that would be a Class B felony child molesting if committed by an adult, was ordered by the trial court to undergo therapeutic polygraph examinations. During one of those exams, I.T. admitted to molesting two other children.

Based on those statements, the State filed a new delinquency petition. I.T. moved to dismiss the petition, arguing that the Juvenile Mental Health Statute, which bars a child’s statement to a mental health evaluator from being admitted into evidence to prove delinquency, barred the State’s evidence.

The trial court granted the motion. The State appealed.

The Supreme Court affirmed, holding (1) the State may appeal a juvenile court order that suppresses evidence if doing so terminates the proceeding; and (2) the Statute’s limited immunity prohibits both use and derivative use of a juvenile’s statements to prove delinquency.

USA v Bahr

9-16-2013 Oregon:

USA v Bahr

Vacating a sentence and remanding, the panel held that the district court’s consideration, at sentencing, of compelled statements made by the defendant in the course of sex offender treatment during an earlier period of post-prison supervision violated his Fifth Amendment privilege against self-incrimination. The panel left to the district court on remand the determination whether the defendant’s mother’s testimony was admissible.

In 2003, Bahr was convicted of third degree rape under Oregon state law. Upon his release to supervision, Bahr was required to complete an approved sex offender treatment program. The terms of his supervision required adherence to all rules and conditions of the program and noted that the program could include polygraph testing. Bahr was indeed required to take a “full disclosure” polygraph test regarding his sexual history. During the test, he revealed that, as a minor, he had sexual contact with six other minors. He also revealed that, as an adult, he had sexual contact with seven different minors. And he revealed that he had eight to ten sexual encounters with fifteen- or sixteen-year-old girls while he was between eighteen and twenty years old. In another portion of the treatment program, Bahr admitted in a workbook that he had sexually abused eighteen children.

When the government prepared the pre-sentence report (“PSR”) in this case, it included Bahr’s admissions made during the polygraph disclosure and in the workbook exercise (“treatment disclosures”). Bahr moved to suppress the treatment disclosures. The district court denied the motion.1 During the sentencing hearing, the prosecution also called as a witness Sandra Brown, Bahr’s mother, who testified regarding statements Bahr made to her concerning his past sexual misconduct.

The use of the compulsory treatment disclosures at sentencing violated Bahr’s Fifth Amendment privilege against self-incrimination. United States v. Antelope, 395 F.3d 1128, 1133 (9th Cir. 2005). In order to establish a violation, a person must show “(1) that the testimony desired by the government carried the risk of incrimination . . . and (2) that the penalty he suffered amounted to compulsion.” Antelope, 395 F.3d at 1134. Potential violations of the Fifth Amendment are legal questions reviewed de novo. Id. at 1133.

We make clear now that the use of unconstitutionally compelled statements to determine a sentence in a later, unrelated criminal proceeding is unconstitutional. The Supreme Court has recognized that the Fifth Amendment’s protections extend to the sentencing phase of a criminal case. Mitchell v. United States, 526 U.S. 314, 327–28 (1999). We have recognized that those protections also extend to separate criminal proceedings. United States v. Saechao, 418 F.3d 1073, 1081 (9th Cir. 2005). Thus, in accord with this court’s precedent, we hold that the district court’s consideration of the treatment disclosures violated Bahr’s Fifth Amendment rights.

... ... ...

Because the district court erred in considering Bahr’s compelled statements obtained in violation of Bahr’s Fifth Amendment privilege against self-incrimination, we remand for re-sentencing. We leave the issue of the admissibility of Brown’s testimony for the district court on remand, and we decline to reassign this case, as Bahr urges. If any revisions or redactions to the PSR must be made in light of our ruling, the district court should have the first opportunity to address those alterations. SENTENCE VACATED AND REMANDED.