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:
- After the age of 18, did you engage in sexual activity with anyone under the age of 15?
- Have you had sexual contact with a family member or relative?
- Have you every physically forced or threatend anyone to engage in sexual contact with you?
- 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.