Note: It’s Not Popular but it Sure is Right: The (In)admissibility of Statements Made Pursuant to Sexual Offender Treatment Programs

Sex offenders are not a sympathetic bunch.  Throughout American history, society has imposed on sexual offenders a variety of punishments, from incarceration[1] to castration.[2]  In recent years, in response to public pressure following several heinous and highly publicized sexual crimes against children, the punishments imposed upon sexual offenders have increased.[3]  Many jurisdictions have enacted laws allowing for the indefinite civil confinement of sexual offenders, while others offer surgical castration or require offenders to submit to polygraph[4] or penile plethysmograph tests.[5]  Furthermore, both the federal government and many states offer or mandate sexual offender treatment programs which may employ some of the above-mentioned methods of punishment, often with the ultimate goal of rehabilitating the offender.

In deciding the appropriate and just punishment for sexual offenders, society and its elected representatives have struggled to reconcile the tension between the very real threat sexual offenders pose to America and its children, and upholding the basic rights afforded all criminal defendants under the Constitution.  While recent conversations surrounding the rights of individuals convicted of sexual offenses have focused on civil confinement,[6] this is not the only punishment practice that implicates the constitutional rights of sexual offenders.  The rights of such offenders are also affected by what are commonly known as “sex offender treatment programs” (SOTPs).  These programs, administered by the government, are voluntary at the federal level, and may be voluntary or mandatory at the state level.  The majority of SOTPs employ a cognitive behavior therapy model and commonly require participants to admit to all past sexual offenses—charged or uncharged, convicted or not convicted—in order to successfully complete the program.

To this end, the programs are laudable.  Based on scientific research showing the efficacy of cognitive-based therapy where the patient takes responsibility for his own wrongdoing, the required admissions to past sexual offenses seem a logical, and indeed necessary, component of rehabilitation.  However, the programs are also problematic, implicating participants’ constitutional rights because statements made during the course of SOTPs can be used as propensity or character evidence in a pending prosecution for a sexual offense, or as the basis for new charges in a subsequent prosecution.

Take John Doe for example.[7]  He was arrested for a sexual molestation offense for the first time in 1982.  In the years that followed, Doe was in and out of prison for a variety of sexual offenses.  Following his last stint in federal prison on child pornography charges, Doe was ordered to participate in a SOTP as a condition of supervised release.  The SOTP required Doe to author an autobiography detailing all sexual abuse that he had suffered and all that he had perpetrated.  Doe did so, providing a detailed written account of each of his victims over the past three decades.  Shortly thereafter, Doe was released from prison.  A few months later, Doe violated the terms of his supervised release by distributing child pornography via the internet.  When police searched Doe’s house, they found a copy of the autobiography and other materials Doe wrote in the course of the SOTP.

At trial, the government seeks to introduce Doe’s autobiography and the other written statements to show his propensity to commit sexual offenses.  The government is also considering bringing charges against Doe for the crimes he admitted tobut for which he was never charged.  At trial, the jury will hear about every single incident of sexual misconduct Doe has ever engaged in because they will have full access to Doe’s private writings—the very writings that the government told him he must produce as a term of his supervised release.

This paper will explore the admissibility of such statements against individuals like Doe who make statements detailing prior sexual offenses, charged or uncharged, in the course of their participation in a government-run SOTP.  Part I will provide a brief overview of federal and state SOTPs and discuss the judicial proceedings in which such statements might be admitted.  Part II will explore the admissibility of SOTP statements under the Federal Rules of Evidence (FRE) and the constitutionality of such under the Fifth Amendment.  Finally, Part III will argue that notwithstanding the evidentiary and constitutional bases for admitting these statements, there are alternative and more compelling evidentiary, constitutional, and policy arguments for not admitting them.  First, many of these statements should be protected from compelled disclosure by the therapist-patient privilege.  Second, the probative value of such statements does not outweigh the prejudicial effect, and thus the statements should be deemed inadmissible under FRE 403.  Finally, such statements violate the Sixth Amendment right to counsel and should be excluded where a defendant is not advised by counsel of the risk of being compelled to make such statements at the time he accepts a guilty plea requiring participation in a SOTP, or where a defendant is sentenced to participate in such a program as part of sentencing, supervised release, or parole.

Ultimately, I argue that it is simply good social policy to exclude statements made during the course of SOTPs. Failure to do so may deter individuals from participating in SOTPs in the first place and prevent offenders from receiving treatment that is critical to decreasing recidivism and to protecting America’s children from sexual crimes.  The solution, I conclude, is to offer a limited “use immunity”[8] to SOTP participants, prohibiting such statements from being used in a search warrant application or as the basis for a subsequent prosecution for crimes admitted to in the statements.

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Meghan Gilligan: J.D. Candidate, Syracuse University College of Law, 2012; B.A. English and Political Science, magna cum laude, University of Rochester.

[1]. Facts About Adult Sex Offenders, Association for the Treatment of Sexual Abusers, (last visited Oct. 11, 2011).

[2]. See Anti-Androgen Therapy and Surgical Castration, Association for the Treatment of Sexual Abusers, (last visited Oct. 22, 2011).

[3]. Jean Peters-Baker, Challenging Traditional Notions of Managing Sex Offenders: Prognosis is Lifetime Management, 66 UMKC L. Rev. 629, 631 (1998).

[4]. See id. at 662 (noting that “[t]he polygraph is one method of measuring a sex offender’s level of risk to the community in a laboratory setting” and is frequently used “to determine the offender’s normal and deviant sexual histories”); see also Mary West et al., Offender Treatment Programs, August 2000: 50 State Survey, Colo. Dep’t of Corrections 20 (Aug. 2000),  Thirteen states reported using polygraph tests to assess sex offenders’ progress in treatment programs, including Colorado, Hawaii, Indiana, Iowa, Kansas, Massachusetts, Minnesota, New Hampshire, Tennessee, Texas, Vermont, Virginia, and Wisconsin.  Id.  Other states stated an intent to implement the use of polygraphs in the near future, and several more reported the discretionary use of polygraphs, or the use of polygraphs in post-release supervision.  Id.

[5]. See Peters-Baker, supra note 4, at 663 (explaining that penile plethysmographs are devices used to measure the response of an individual’s penis to audio or visual stimuli); see also Fed. Bureau of Prisons, Sex Offender Treatment Program (2002), available at (“[a]ll participants will undergo plethysmograph and polygraph examination”).

[6]. See generally, e.g., United States v. Comstock, 130 S. Ct. 1949 (2010).

[7]. “John Doe” is not based on a real individual but is instead exemplary, used to illustrate a plausible scenario based on existing SOTP practices and case law concerning prosecutions for sexual offenses.

[8]. Dissenting in McKune v. Lile, Justice John Paul Stevens coined the term “use immunity” with regard to statements made pursuant to a SOTP.  536 U.S. 24, 70 (Stevens, J., dissenting).

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