By Christopher Zoukis

In May 2016, the U.S. Court of Appeals for the Tenth Circuit held that sex offenders released from custody cannot be compelled to answer potentially incriminating polygraph questions as a condition of their supervised release. The ruling came after an earlier emergency stay of a polygraph test was issued by the appellate court.

The case centered on Brian Von Behren, a Colorado resident who was convicted of distribution of child pornography in 2005 and sentenced to 121 months in federal prison, along with a three-year term of supervised release. In March 2014, as Behren’s prison sentence was ending, a special condition of his supervised release was modified, requiring him to submit to a sexual history polygraph that included potentially incriminating questions.

Once released from prison, Behren entered into a non-negotiable treatment agreement with RSA, Inc., a Colorado-based sex offender treatment provider under the authority of the Colorado Sex Offender Management Board, which requires such programs to conduct a sexual history polygraph and report any admissions of illegal conduct to law enforcement officials.

The polygraph included four potentially incriminating questions concerning prior sexual conduct: 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 contact with you? and 4) Have you ever had sexual contact with someone who was physically asleep or unconscious? Behren could refuse to answer only one of the four questions.

He filed objections with the U.S. District Court for the District of Colorado, arguing the questions violated his Fifth Amendment right against self-incrimination. On August 26, 2014 the district court sided with Behren, ordering that his conditions of supervised release be modified to “exclude any requirement that he admit to a criminal offense other than his offense of conviction.” See: United States v. Behren, U.S.D.C. (D. Col.), Case No. 1:04-cr-00341-REB.

Despite that initial order, RSA informed Behren that if he did not take a polygraph and answer the questions he would be kicked out of the treatment program, thus violating a condition of his supervised release and potentially resulting in his return to prison. Behren responded by filing an emergency motion with the district court, yet on January 27, 2015 the court reversed its prior ruling and directed him to comply with the polygraph test. RSA notified Behren that the polygraph would be administered two weeks later.

Just before midnight on the day before the test, Behren filed a motion with the Tenth Circuit Court of Appeals to stay the order. While waiting in the RSA parking lot prior to the scheduled polygraph test, the appellate court granted an emergency stay.

On May 10, 2016 the Court of Appeals issued a decision with several potentially far-reaching findings, including that compulsory sexual history polygraph tests violate the Fifth Amendment’s protection against self-incrimination and self-compulsion.

“To assure an individual is not compelled to produce evidence that may later be used against him in a criminal action, the Supreme Court has always broadly construed the protection afforded by the Fifth Amendment privilege against self-incrimination,” the appellate court wrote.

Concerning incrimination, the Tenth Circuit explained “that Mr. Von Behren faces at least some authentic danger of self-incrimination by answering three of the four mandatory questions in the RSA’s sexual history polygraph.” With respect to the issue of compulsion, “The government’s threat to revoke Mr. Von Behren’s supervised release for his failure to answer potentially incriminating questions rises to the level of unconstitutional compulsion.”

In short, the appellate court concluded, “The Fifth Amendment is triggered when a statement would provide a ‘lead’ or ‘a link in the chain of evidence needed to prosecute the’ speaker … and affirmative answers to these questions would do just that.”

Such language could very well have a broader impact on sex offender polygraphs across the nation, as many sex offenders are now required to undergo both polygraph testing and voice stress analysis as an integral component of their community-based treatment, and failure to comply often results in revocation of parole, probation or supervised release.

Currently, objections to the use of polygraphs, voice stress analysis and plethysmograph testing on sex offenders as a condition of their treatment and community supervision are pending in courts across the country. Most of the cases center on the same issue: whether sex offenders can be compelled to provide information against themselves as part of their treatment program, and whether they can be sent to prison for refusing to violate their Fifth Amendment right against self-incrimination. See: United States v. Von Behren, 822 F.3d 1139 (10th Cir. 2016).

Additional sources: www.courthousenews.com, www.denverpost.com

Originally published in Prison Legal News August 2, 2016.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).