There are more than 10,000 registered sex offenders in the State of Colorado.
In 1992, lawmakers in Colorado created the Sex Offender Management Board (“SOMA”), charging it with the task of developing and implementing “standards” for the assessment, evaluation, treatment, and behavioral monitoring of adult sex offenders. SOMA created the following mandates:
- Compliance with all SOMA standards is mandatory.
- No state agency or judicial department may contract with any “non-certified treatment provider” to provide treatment for sex offenders.
- Failure to comply with SOMA standards can lead to the removal of the state’s list of “approved providers.”
- Registered sex offenders are assigned to a SOMA certified treatment provider called Redirecting Sexual Aggression, more commonly referred to as RSAs.
- SOMA guidelines require a non-negotiable “written contract” between the sex offender and the RSA.
- One requirement spelled out in a sex offender’s “treatment agreement” is the mandatory requirement that he or she submit to and complete a “sexual history polygraph.”
This brings us to the case of B. Von Behren. The facts of his case, and his relationship with SOMA, were spelled out in a May 10, 2016 decision by the Tenth Circuit Court of Appeals.
Sentenced to 121 Months for Receipt and Distribution of Child Pornography
In March 2005, Von Behren was sentenced to 121 months in a federal prison followed by three years of supervised release for the receipt and distribution of child pornography. The sentencing court spelled out specific conditions of his supervised release.
Three Years Supervised Release After Release from Prison
As Von Behren neared release from the federal prison system, the U.S. probation office in the district in which he was sentenced petitioned the court in March 2014 to modify the conditions of his release. One condition sought by the probation office was the requirement that Von Behren complete an “approved sex offender treatment program.”
The Tenth Circuit pointed out that “these new conditions were necessary for Mr. Von Behren to be accepted into a program that complied with standards mandated by [SOMA].”
Four Mandatory Questions
Von Behren was assigned to a SOMA RSA. This treatment provider required Von Behren to undergo a polygraph exam that would include the following “four mandatory questions”:
- After the age of 18, did you engage in sexual activity with anyone under the age of 15?
- Have you had contact with a family member or relative?
- Have you ever physically forced or threatened anyone to engage in sexual contact with you?
- Have you ever had sexual contact with someone who was physically asleep or unconscious?
An affirmative answer to any of the questions would trigger a mandatory follow-up question asking “how many.”
Objections to Polygraph Exam: Violated Fifth Amendment Right against Self Incrimination
Von Behren objected to the probation office’s supervised release modification that would effectively compel his to undergo the polygraph exam in order to complete the sex offender treatment program. He argued that such an exam violated his Fifth Amendment right against self-incrimination.
Federal Courts Agreed
In August 2014, the sentencing court conducted a hearing as it was required to do and ruled that the polygraph exam was a violation of Von Behren Fifth Amendment right.
This pronouncement did not deter the RSA. Several months after the sentencing court’s ruling, Von Behren was informed that he would have to undergo the polygraph exam. RSA advised him that he would be allowed to refuse to answer only one of the exam’s four questions.
In December 2014, Von Behren defense attorney filed an “emergency motion to block the exam” with the sentencing court.
Court Reverses Its Earlier Ruling
For the first time, on January 27, 2015, the sentencing court saw the four particular questions the RSA proposed to submit to Von Behren through the polygraph exam. In an extraordinary move, the court reversed its earlier ruling and ordered Von Behren “to complete RSA’s sexual history polygraph.”
The court justified its reversal by saying the mandatory questions did not “present a real and appreciable risk of incrimination to Mr. Von Behren.” The court based this conclusion on the fact that the defendant’s answers would not “specify the time, the place, the identity of any victim, or other people involved.”
Von Behren filed an immediate notice of appeal in the sentencing court along with a request that the court stay its ruling pending his appeal.
While these judicial maneuvers were underway, RSA scheduled Von Behren polygraph exam for February 11.
The Government informed that the sentencing court that RSA would “terminate Mr. Von Behren from treatment should he refuse to take the February 11 polygraph examination.”
Government Argues to Remand to Prison
Further, the Government told the court that it was opposed to any “scenario” that would permit Von Behren “to stay in the community without treatment” and would seek to “remand” him to prison if he did not “receive sex offender specific treatment.”
On February 10, the sentencing court denied Von Behren’s motion to stay the polygraph exam, less than 24 hours before he was scheduled to undergo it.
Von Behren then filed a motion to stay the exam with the Tenth Circuit until his appeal on the issue could be heard.
Emergency Stay Granted
Fortunately, on February 11, as Von Behren was in the examiner’s parking lot, the appeals court granted the “emergency stay” of the polygraph pending his appeal.
The Tenth Circuit’s May 10 decision found that Von Behren had preserved his Fifth Amendment right against self-incrimination by objecting to the required polygraph exam.
Compulsion to Provide Incriminating Evidence Violated Fifth Amendment
Significantly, the court held that the Government’s threat to return Von Behren to prison was sufficient to satisfy the “compulsion” requirement of the Fifth Amendment; specifically, that an individual has been compelled to provide incriminating evidence of wrongdoing against himself.
The Government tried to convince the court that it threatened to return Von Behren to prison not for refusing to take polygraph exam but for failing to complete a required treatment program.
“We are not persuaded by this argument,” the appeals court responded. “Mr. Von Behren was not permitted to complete treatment solely and directly as a result of invoking his Fifth Amendment privilege and refusing to answer incriminating questions. The government’s argument is a distinction without a difference.”
Conditions of supervised release are often harsh, unnecessary and even draconian (here and here). Often they prevent the successful transition for convicts that have paid they debt to society, some of whom have successfully completed extensive rehabilitation programs. Many appeals courts, like the Tenth Circuit did in the Von Behren case, taking a second look at these conditions and their relationship to stated purposes of supervised release. It is our firm belief that all unreasonable and unnecessary conditions of supervised release, especially those that violate the Constitution, should be objected to and appealed. The transition to life in the free world after years in prison is difficult enough without additional, and often punitive, road blocks.