CA: Polygraph Requirement Violates Registrant’s 5th Amendment Rights
The 10th Circuit Court of Appeals issued a decision today stating that a registrant’s Fifth Amendment right to remain silent was violated when the government sought to return him to prison because he refused to answer questions regarding his sexual history during a polygraph exam.
The questions the registrant refused to answer are (1) after the age of 18, did you engage in sexual activity with anyone under the age of 15, (2) have you had sexual contact with a family member or relative, (3) have you ever physically forced or threatened anyone to engage in sexual conduct with you and (4) have you ever had sexual contact with someone who was physically asleep or unconscious?
The court noted that the registrant’s affirmative answer to any one of these questions could have been interpreted as a confession of illegal conduct. The court also noted that the government’s threat to revoke the registrant’s probation for properly invoking his Fifth Amendment privilege is the type of compulsion the government may not impose. The court further noted that an individual is compelled “as soon as the government threatens him with a substantial penalty”.
In the case, the registrant was required to successfully complete a sex offender treatment program mandated by the Colorado Sex Offender Management Board. The registrant was required to sign an agreement that included a requirement to take a sexual history polygraph and allowed his treatment provider to report any sexual crimes discovered during the polygraph exam to appropriate authorities.
When the registrant refused to answer sexual history questions during his polygraph exam, the treatment provider expelled him from the mandatory treatment program. This expulsion, in turn, subjected the registrant to potential revocation of his supervised release and a prison sentence.
In its decision, the court noted that the terms of the sex offender treatment agreement were non-negotiable. The court also noted that its decision was based in part upon the registrant affirmatively asserted his Fifth Amendment right to remain silent during his polygraph exam.
As a result of this decision, the registrant is not required to answer questions regarding his sexual history during a polygraph exam.
You can also read the decision here: https://floridaactioncommittee.org/wp-content/uploads/2016/05/Polygraphs-violate-5th-Amendment.pdf
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with this decision and the treatment provider who reports information to parole officers or removes people from their programs because they stand for their constitutional rights could be charged with a violation of federal law USC title 18 section 241 “conspiracy against rights” denial of a person’s constitutional rights on any grounds outside of the courtroom (even the judiciary branch has constitutional restraints the punishments that they deal out ) with this decision it may be that it opens the door for anyone who has been expelled from treatment and had their probation or parole violated because of that may have grounds to sue the treatment provider and the PO and even bring criminal charges against them under title 18
Very informative.
I agree with JR, treatment is never ending, even after completing 2 years of treatment.
How is it that being compelled to provide fingerprints and/or a DNA sample after an arrest or as part of sex offender compliance is not considered a violation of 5th amendment rights? Is it because law enforcement is TAKING them vs. the arrestee giving them? The purpose of these acts is to incriminate one for other crimes.
This is fantastic!
What circular logic these laws create and try to abide by.
Additionally, I’ve wondered to myself and on these posts that of the laws require counseling why do they not accept the results of completing the treatment? Or in some cases, never have an end to treatment? (I believe my treatment saved my life so I think the right program is a great thing)
Other states are definitely making progress in SO reform. Unfortunately, we live in Florida, one of, if not, the most regressive human and civil rights state(s) in the union.
Common sense.
Wow this is awesome!