What happens when you have to take a polygraph test once a month for your sex offender treatment? What do you do when they ask you questions in a polygraph about acts that might get you in trouble? Are you required to answer all of the questions in a polygraph? Last month, the 10th Circuit made some ground on what people can and can’t answer during sexual history polygraphs for sex offender management. The Supreme Court found that you indeed do have a 5th Amendment right not to answer questions about illegal sexual behaviors in the context of a sexual history polygraph. The case is called United States v. Von Behren.
Brian Von Behren was serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography. One of the conditions of this supervised release was a sex offender treatment program. This is pretty standard for all convicted sex offenses. Almost always included in sex offender treatment is a sexual history polygraph. This ensures compliance from the client and compliance is essential to these treatment programs. In Mr. Von Behren’s case, he was required to do this polygraph test requiring him to answer questions regarding whether he had committed sexual crimes for which he was never charged. The treatment program requires your full participation. In this case, the treatment program even had him sign an agreement instructing the treatment provider to report any discovered sexual crimes to the appropriate authorities. Mr. Von Behren refused to answer these questions. He contended that the polygraph condition violated his Fifth Amendment right against self-incrimination. The District Court did not agree with Mr. Von Behren’s assessment of his Fifth Amendment right in this circumstance. Due to the fact that Mr. Von Behren refused to answer the sexual history questions for fear of incriminating himself, he was facing potential revocation of his supervised release for violating this condition of his treatment. It was also found that a Fifth Amendment’s privilege against self-incrimination applies not only to person’s who refuse to testify against themselves at trial but it also allows for you to refuse to answer official questions in any other proceeding, criminal or civil. Furthermore, a defendant does not lose this right by reason of conviction of a crime. Even people who have been convicted and are still serving time under the state have this protection from the United States Constitution. According to past cases, a communication must be testimonial, incriminating and compelled to be classified under the Fifth Amendment privilege. The court went even further to state “there is no doubt that answering questions during a polygraph examination involves a communicative act which is testimonial.” These kinds of precedent cases are very important when it comes to such an important Amendment for the American people. All in all the final decision was to reverse the district court’s ruling. The Supreme Court held that the government compelled Mr. Von Behren to be witness against himself.
This has a lot of serious impact for people who are managed by the Sex Offender Management Board. It allows for free participation from clients that need this kind of treatment without fear of being prosecuted further. Almost everyone who is in the business of offering treatment to sex offender’s state that truthful compliance is essential to successful treatment. This is a big step in the right direction for people who want to fully participate in treatment but haven’t in the past for fear of self-incrimination or revocation of their treatment status. We will have to wait and see if this impacts the amount of successful completions from treatment, or if this gives people a reason and a catalyst not to say anything at all.
By Shannon Lynch