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May 10, 2016

Tenth Circuit finds Fifth Amendment problems in sex offender treatment program requirement as part of conditions of supervised release

A helpful reader alerted me to think interesting new Tenth Circuit panel ruling in US v. Von Behren, No. 15-1033 (1th Cir. May 10, 2016) (available here), which gets started this way:

Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography.  One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged.  The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities.  Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense.  Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision.  The district court denied Mr. Von Behren’s request to stay further proceedings pending appeal, but this court granted a stay.  We reverse on the Fifth Amendment issue.

May 10, 2016 at 03:43 PM | Permalink


Just shows the devious lengths the government will go to in order to keep putting sex offenders who've already done their time, back in prison.
Mr. Von Behren would have had to pay for his sex offender treatment/polygraphs out of his own pocket and and then the government wanted to use what should be "patient-therapist confidentiality" regarding information garnered in the treatemt program/polygraphs to use against him for "possible crimes" that "he had never been charged with."
How is this OK?
Sex Offenders, the last group that the government obviously thinks it's OK to discriminate against.

Posted by: kat | May 11, 2016 10:42:22 AM


"the last group that the government obviously thinks it's OK to discriminate against."

How kind of you. I would have said that they are the only group against which the government engages in an orgy of persecution.

I read the opinion yesterday and I was so disgusted I didn't even bother to comment....the fact that they even TRIED this tells one everything one needs to know about justice and the rule of law in this country.

Posted by: Daniel | May 11, 2016 10:50:25 AM

Our "honorable" administration looks like the pot calling the kettle black! Far more sex offenders on the government payroll.

Posted by: LC in Texas | May 11, 2016 11:20:20 AM

The phrase "sex offender treatment program" so often does violence to the word "treatment." They are, oftentimes, about as reminiscent of treatment as the inquisition was, which I would suppose is appropos since sex offenders are the modern day witches. If inquisitors would have had polygraphs instead of thumbscrews, they would have used them.

I'm glad to see that the Tenth Circuit didn't abrogate it's role, as so many courts do, in ensuring that the constitution still technically applies -- even as the dread words "sex offender" spill from the government's lips.

Posted by: Guy | May 11, 2016 12:53:46 PM

Good for the Tenth Circuit, and thank you. before all human rights are strip from someone that already did it time, and will not have to return on a violation. So the that he can continue and move on with life. But most of all Without another charge.

Posted by: Matha | May 11, 2016 5:13:11 PM

I hope the authorities in Tennessee take notice of this ruling. They require the same kind of "sexual history polygraph". It's a fishing expedition and nothing more. They figure if they make "full disclosure" a part of "treatment" they can circumvent the normal safeguards that would be in place during a traditional criminal investigation. To wit: the suspect's right to invoke 5th Amendment protection without being penalized. It's nothing more than a thinly disguised fishing expedition.

Posted by: Will Crump | Sep 2, 2016 6:37:47 PM

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