Federal Appeals Court Rules Certain Mandatory Sex Offender Polygraph Questions Unconstitutional

10th Circuit Court of Appeals Building in Denver, Colorado

The United States Court of Appeals for the 10th Circuit has ruled in a 25-page opinion (PDF) that a convicted sex offender in a post-conviction polygraph program cannot be compelled to answer questions about his sexual history that could tend to incriminate him. So-called “sexual history polygraphs” are commonly administered early in such programs, and typically include questions about any past, undetected sex crimes. The court’s ruling finds that compelling an individual to answer such questions, under threat of sanctions such as being removed from a treatment program and returned to prison, violates the individual’s 5th Amendment right against self-incrimination in the absence of a grant of immunity.

The specific mandatory sexual history polygraph questions that the appellant, Brian von Behren, refused to answer, and that the court found violated his 5th Amendment rights, were:

  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 every physically forced or threatend anyone to engage in sexual contact with you?
  4. Have you ever had sexual contact with someone who was physically asleep or unconscious?

The 10th Circuit ruling in U.S. v. Brian Von Behren (No. 15-1033), if not overturned on appeal, will bind federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

For additional commentary, see Jesse Paul’s report, “Colorado sex offender’s lie detector court win could have big impact” in the Denver Post and Jonny Bonner’s Courthouse News Service report, “Forced Polygraph of Sex Offender Unconstitutional.”

Reader comments are welcome.

Comments 19

  • Where is the evidence required in a court of law before a jury before prosecution can go ahead? It is not likely to be prosecutorial simply because a person goes so far as to say he had sex with a minor when he was an adult. Yet it can be very helpful in therapy. In my practice I receive refferals from probation officers who become aware that an offender has admitted to past crimes and they are not charged with this formerly unknown to them, crime. These are yes and no answers. “Yes, I did do this,”—– but the operator is not going to probe for more info that would be needed to prosecute.

    • Any time the state intends to compel self-incriminating testimony from anyone, they are required to confer full-use immunity so that nothing said or any evidence derived therefrom can ever be used against them. That’s the law, like it or not.

      The TN sexual history polygraph asks for a generic identifier, the age, the gender, when the abuse started, when the abuse stopped, and the relationship of the child to the offender (relative, friend, or stranger). The District Attorneys in TN have access to an offender’s treatment jacket. Now tell me that doesn’t stink to high heaven with any level of honesty on YOUR part…

    • Why isn’t it enough if an offender admits he or she is a pedophile? Why try to dig out everything they ever did? I say leave the past alone. It’s none of your or the state’s business.

    • I think the court nailed it square. Therapy??? Yeah, right. You just don’t like it because an insidious method of railroading sex offenders back to prison has been put in even more jeopardy. If this makes it to S.C.O.T.U.S. and is upheld, it’s over nation-wide for sexual history polygraphs that are used a a pretense for an illegal fishing expedition . Admit it. You probably don’t even like the idea that they are ever released back into society to begin with; particularly the ones that have sexually abused children. This ruling was founded solidly on S.C.O.T.U.S. rulings, so I doubt this will be overturned. Look at the case of United States v. Lawrence Antelope from the 9th Circuit. The court made the same ruling in 2005 and has yet to be overturned.

    • This misses the point. The issue of any helpfulness in therapy is not relevant, the constitutional question is concerned with compelling the answer. The law says that anything you say “can and will.” And the state does!

    • What do you mean by minor and adult ? Because if you are Eighteen and he/she only two or at the most three years older, how would ask that question now? Certainly, you can’t consider this person a child molesters? The question that should be ask is how does this answer help in therapy? can you answer that?

  • but what if they’re being honest when they say no and the polygrapher decides they are being deceptive? With the polygraphs lack of credibility, this could result in someones treatment being based on a false accusation, instead of their real therapeutic needs. This could also harm the therapeutic process by reducing trust all around. I just don’t see the value of it, and how many people are kicked out of therapy and therefore incarcerated for failing these polygraphs?

    • Exactly!! I think there is too much of a margin of error for the polygraph to even be allowed in the first place in any scenario.

  • The Court of Appeals sounds misinformed. Sexual history polygraphs are intended only as a treatment tool. Treatment providers have no motivation to, or interest in, having a polygraph administered for the purpose of incriminating someone or having someone charged with another sex offense. That does not serve a therapeutic purpose. It is clearly explained on the cover sheet of the sex history questionnaire that offenders only identify victims with an S for stranger, an A for acquaintance and a F for family member. Without further identifying information, reporting is useless. That is done for the very reason of protecting offenders against further prosecution and allowing them to disclose fully in treatment. In addition to stating this on the cover sheet, it is the responsibility of the treatment provider or who requests the polygraph, and the polygraph examiner, to explain this verbally as well. Thus there are three layers of protection for offenders prior to them filling out the questionnaire and taking the polygraph.

    • Do you not understand that by identifying victims as “f” for family allows the state to quickly narrow the focus of a criminal investigation? Also, do you not understand that absent full-use immunity that should a victim come forward years later and disclose they were abused by this offender during a given time period and that by admitting he abused a family member within that time frame he has given the state evidence to use against him? It is not the court who is misinformed, but it is you with regards to what all the 5th Amendment protects.

    • Mknooe, perhaps this is the way it works in your state or treatment agency, but in Colorado, all offenders are required to sign and adhere to a treatment contract when they enter into sex offender treatment. One provision of the contract states directly that the treatment agency is required to inform law enforcement and the attorneys office of any past or current criminal behavior that is revealed.

      Additionally, in this specific case, the federal prosecutors over the case refused to grant use and derivative use immunity in regards to any admissions made during the polygraph.

  • This, which the defendant was obligated to sign, is copied and pasted from the Ruling [the RSA is the treatment facility]:
    I hereby instruct RSA, Inc. to report to any appropriate authority or
    authorities any occurrence or potential occurrence of any sexual offense on
    my part regardless of how RSA, Inc. gains knowledge of such occurrence
    or potential occurrence. “Appropriate authority or authorities” as used in
    this and subsequent revisions may include, but is not limited to, County
    Human Services Departments, law enforcement agencies, probation or
    parole personnel, victims or potential victims, parents, spouses, school
    personnel, and employers.

    So much for no violation of the Fifth Amendment! Mr./Ms. mknooe, et al, please read the Court’s words before determining she is “misinformed”. Else you only reveal your own utter bias and “misinformation”! The published opinion is posted here: https://www.ca10.uscourts.gov/opinions/15/15-1033.pdf

  • I am currently a RSO on probation and attending therapy (which has been extremely helpful). I have no issue with the polygraph being used as an aid in therapy, and even the Probation Officer concedes that no new charges can be brought forth based on the results of the sexual history questions. However the maintenance polygraph (are you adhering to probation guidelines) can and will result in house arrest for any test results that are not 100% clean. No evidence is needed to exercise these punitive measures. I can understand if the P.O. feels a legitimate threat to the community is clear, but that does not seem to be the criteria considering house arrest is assigned on any failed question. Plus the constant reminder/threat from the P.O. that house arrest is coming for any polygraph that does not come back clean. Taking a polygraph is one thing, taking a polygraph knowing that any hiccup could mean house arrest puts an incredible amount of pressure, fear and paranoia into the subject being questioned. So my question is this – do 5th amendment rights apply to house arrest. Is house arrest a punitive response or an aid to therapy? If punitive, how can the subject be denied due process (presenting evidence, etc.) before being sentenced to house arrest?

  • Why don`t you ask the people who are forced to take the multiple poly tests in order to complete the 5.7 compliance required, how many times they have failed, not due to lying, but because of the anxiety it causes, and why don`t you also ask them how many thousands of dollars each of them has spent? and if it`s just a “tool”, why are they being forced to pay for it, when they also have to pay for the therapists who are supposed to be helping them to work through the issues. Google polygraph and you will find it is not a valid tool by scientific or psychologists standards. Question, how many of the people requiring the polygraphs have taken and passed them themselves?

    • If all sex therapists were required to take the same polygraph test before being granted licences and certifications and again every 2 years throughout their tenure, How many would still be practicing? If it’s been a proven fact that most people choosing to be a therapist as their profession admit that they have their own Psychological and emotionalissues which brought or influenced them into a job that helps others with their problems, Simple logic would Tell us that a lot less than 100% of sex therapists are Completely without any sexual criminal history whether they were caught or charged With a crime or not. For the same reason that so many youth athletic coaches and Religious Leaders such as priests and pastorsAre also and a high percentage of sex offenders, Should we believe that those hired as sex therapists are doing this particular job solely to help people get better or do you think perhaps a good percentage of them actually Are getting some sort of gratification by listening to these horrific stories of sexual abuse?
      What’s the difference between waterboarding somebody and telling them I am going to let you live if you admit you did something or any other form of torture to Coerce a response that you are trying to get out of a person? And on the other hand how many people just admitted to something to avoid the embarrassment of going to court and the threat of gaol in order to put it behind them only to find out that maybe going through the probation and sex offender Therapy was actually worse than just going to trial and fighting the case? Never take a deal. 90% of people regret admitting to something whether they did it or not, Simply to just get probation rather than gaol time and the district attorney’s know this so they try to pretend that the 1st offer is the best or only offer. When in reality 95% of these people would have walked free because it’s really hard to convince 12 people That somebody did something specifically based on A witness testimony or hearsay. It’s a polygraph is admissible in a court Room how would forcing somebody to take one in order to help them Make that person trustful or cooperative of the therapists or the system? If more people stood up for their 5th amendment right this tactic would be abolished like slavery and every other Oppressive act Imposed by Laws made by common man.

  • In 1986, I was convicted of a sex crime and given 10yr’s probation. In 1987, I was accused of having committed a second sex crime while on probation that I did not commit. I plead not guilty, went to trial. Was given a public defender who allowed bias jurors. Was found guilty and sentenced to an additional 50yr’s. On first appeal, was given the same so-called attorney. Afterwards, all my pro-se appeals were denied. In 2009, I was released under Texas Mandatory Supervision Laws, time served. However, I was placed on parole. As such, I am required to attend counselling as well as undergo the scrutiny of polygraph examines. And of course, register. First, would not the law against retroactivity apply?

    To ALL of you so-called SOTP, non-misinformed therapist, who rely on polygraph results as a “Tool” for therapy. Given the fact that polygraph results have been proven to be unreliable. That’s equal to using a hammer (tool) to cut glass! You would shatter the glass, and you are shattering peoples lives by the use of this so-called “Tool”. STOP IT! Also given the fact that most of the questions asked, including maintenance polygraphs, are a violation of a persons 5th amendment rights against self incrimination. You are simply pure evil. You, as well as the polygraph operator, should take the “test” yourself. See if you pass it. And then still rely on the results.

    Currently, I am being forced to undergo a sexual history polygraph. Answer questions which are in and of themselves very sexually perverted. I mean what normal person thinks in that manner to ask such questions. Whoever invented this questioner, as well as those who stand behind it. REALLY need to be counseled themselves…. This is a violation of my 5th amendment rights, like it or not, the law is still the law. The same law which demands those who utilize the law to follow the law themselves.

    • You are partially correct. A polygraph test can cost a few hundred dollars and polygraphists can become wealthy peddling this pseudo-science. Look how rich the Ribacoffs have gotten giving bogus tests that have nearly resulted in the death of a young woman, and several recruits not able to become NYC transit officers. It would be cheaper to flip a coin and have the same results.
      Also, there are politics involved with the get tough on crime, especially on sex offenders. As a retired officer of the court, I would rather be slam dunk guilty of a burglary than falsely accused of a sex crime.
      Granted sexual abuse is a horrible crime, but so is murder. At least 20 additional women died after Gary Ridgway “passed” a polygraph.
      Using a polygraph is a lazy and haphazard way of investing crime.
      Finally, any therapist that utilizes polygraphs or voice stress analyzers is an incompetent quack and should immediately lose their license.

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