Polygraph Requirement Violates Registrant’s 5th Amendment Rights – update 1/28/17

In September of 2015 SOSEN printed an article about parole and probation /blog/2015/09/01/probation-and-parole-the-real-story.html. Within that article the author pointed out some of the myths that parole and probation (PNP) and sometimes even the court uses to increase the loss of civil liberties beyond their constitutionally legal boundaries. It pointed out problems probation and even the courts have when placing restrictions on a person’s civil liberties.  Restrictions placed on a person that are conditions of PNP have to be related to the crime that has put the person under the control of the judicial system. While the court can adopt terms and conditions of probation recommended to it by an administrative agency of government the said agency must show proof, not mere conjecture, for the need of a requirement. The court cannot delegate it’s power to fix terms and conditions of probation. ( Whitehead v. United States, 155 F2d 460 (CA6 Tenn 1946). Now another needed court decision has been placed in action by a Federal Court. It has been a long-standing rule that polygraph’s may not be used within the court system. Now the courts have pointed out that parole and probation in conjunction with treatment providers have been stepping outside their legal and constitutional boundaries once again. This decision should place all parole and probation officers on notice that there will be lawsuits and possibly criminal charges. If they continue these type of unconstitutional practices.

Posted by fac-admin on May 10, 2016 in Articles

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: http://floridaactioncommittee.org/wp-content/uploads/2016/05/Polygraphs-violate-5th-Amendment.pdf



SALT LAKE CITY — A convicted sex offender does not have to reveal his complete sexual history as a condition of his parole, the Utah Supreme Court has ruled.
Brendt Thomas Bennett sued the Utah Department of Corrections after his parole was revoked when he was ordered to disclose his sexual history — including any uncharged sex crimes — as a part of sex offender treatment. The Utah Supreme Court said in a ruling released Saturday night that it violates his Fifth Amendment constitutional right against self-incrimination.
“We hold that a threat to revoke a defendant’s parole constitutes compulsion for purposes of the Fifth Amendment,” Utah Supreme Court Chief Justice Matthew Durrant wrote.

Bennett was paroled from the Utah State Prison in 2007 into the Bonneville Community Correctional Center, with an order that he complete sex offender treatment there. As part of the program, the court said in its ruling, Bennett was ordered to make a disclosure of his sexual history to a therapist and in a polygraph exam.
“Mr. Bennett invoked his Fifth Amendment right against self-incrimination and, though he answered some of the questions in a general way, he refused to provide more specific answers. He claims that the ‘treatment team pointedly demanded answers to questions that would require me to incriminate myself,’” Chief Justice Durrant wrote.
“Bennett’s refusal to discuss it apparently led to his parole being revoked and his return to prison.” A lower court ruled against Bennett, who appealed to the state’s top court. The Utah Supreme Court sided with Bennett, and also chastised lower courts for not providing him with a lawyer as he fought the parole revocation.

In its ruling, the Utah Supreme Court said it was not rejecting the “valid and important rehabilitative purposes of sex offender treatment programs.”
“Although the State argues that our decision today will undermine the purposes and effectiveness of sex offender treatment programs, a compelling state interest does not outweigh an individual‘s Fifth Amendment rights,” Chief Justice Durrant wrote. “The ruling does not overturn Bennett’s conviction, but sends his parole issue back to a lower court to be decided”.

With this decision 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 241-245 “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’s, and even bring criminal charges against them under title 18, remember they do not have qualified immunity if they violate constitutional standards /blog/2016/04/19/all-government-officials-can-be-sued-for-actions-outside-their-authority.html

NOTE:There is one more issue here and that is the fact that polygrapher’s and treatment providers are forcing people to sign documents waiving their Fifth Amendment rights as well as other constitutional rights including the right to sue even if the polygrapher or the treatment provider does something unconstitutional to the participant. These unconstitutional waivers must be signed in order to stay in treatment and take the polygraph, Otherwise the they are open to violating a persons parole or probation. This practice is in violation of Doctrine of unconstitutional-conditions and possibly the doctrine of Abuse of Rights.


What happens when you have an attorney that challenges the use of the polygraph. When the therapist uses it for the sexual history , and you submit that to the Texas Department of criminal Justice when there is a possibility of a person being thrown out of therapy for taking the Fifth Amendment . See attached for the Texas Department of criminal Justice’s response. 5th Amendment polygraph


this person decided to be proactive and actually challenged the need for the polygraph in advance of taking it interestingly it’s basically saying that if a person is thrown out of treatment because of refusing to do the polygraph them the PO has a responsibility to find the other treatment. this would follow because only certain treatment providers are accepted by the PO’s


LAURA __________,

3: 1O-CR-001-R WS

An issue has arisen regarding a requirement that Defendant submit to a
specific incident polygraph as part of her treatment at Highland Institute.
Defendant has objected to the polygraph out of concern that she may be asked
about incidents outside the conduct about which she has pled guilty. She
wishes to protect her right not to incriminate herself. However, the Highland
Institute has indicated that she may not continue her treatment, which is a
condition of her supervision, if she does not submit to the polygraph.
The Court finds that it would be improper to order Defendant to
incriminate herself as a part of her treatment. The undersigned recognizes that
this may compromise the treatment plan for Defendant. However, the
constitutional rights of the Defendant take priority in this circumstance.

Case 3:10-cr-00001-RWS-GGB Document 65 Filed 11/17/16 Page 1 of 2
Therefore, Defendant is not required to answer questions in a polygraph
examination concerning incidents about which she has not pied guilty. If this
ruling disqualifies her from treatment at the Highland Institute, then an
alternative treatment program will need to be found or the case will need to be brought back before the Court for further consideration.

SO ORDERED this 171″day of November, 2016.


Doctrine of Unconstitutional Conditions Law & Legal Definition
Doctrine of unconstitutional-conditions is a rule of constitutional law that bars a government from imposing a condition on the grant of a benefit requiring the waiver of a constitutional right. The government cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutional ly protected right.
It also refers to the rule that government cannot force a defendant to choose between two constitutional ly protected rights.

Abuse of Rights Law & Legal Definition
The doctrine of Abuse of Rights, found in various guises in Civil Law jurisdictions, refers to the concept that the malicious or antisocial exercise of otherwise legitimate rights can give rise to civil liability. In general terms, the doctrine of abuse of rights provides that ‘fault’ in the delictual sense. It may be imposed upon a party who has exercised a right in a manner that has caused injury to another. At least one of four conditions is required to invoke the doctrine: (1) the predominant motive for exercising the right is to cause harm; (2) no serious or legitimate motive exists for exercising the right; (3) the exercise of the right is against moral rules, good faith, or elementary fairness; or (4) the right is exercised for a purpose other than that for which it was granted.

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