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Gov't Asking About Past Sex Crimes Is Unconstitutional, 10th Cir. Rules

By Jonathan R. Tung, Esq. on May 17, 2016 | Last updated on March 21, 2019

A stunning case was recently decided by the Tenth Circuit in which the federal court ruled that a convicted sex offender facing an 'authentic danger of self-incrimination' cannot be forced by the government to answer questions regarding past sexual crimes. It's a clear line drawn in the sand.

In our view, the decision by the circuit court was the correct one and that the circuit correctly reversed the lower court's ludicrous finding that the subject's answers would not present a "real and appreciable risk of incrimination."

Sex Offender Rehab and Lie Detectors

Mr. Brian Von Behren was required, as part of his probation, to participate and fully complete a state-run sex-offender rehabilitation program following his 2005 convictions for distributing child pornography. But acceptance into the program would require Von Behren to submit to a polygraph and answer questions about past sexual behaviors and potential crimes. Von Behren refused to answer several questions on the grounds that to answer them would be self-incriminating under the Fifth Amendment.

Samples of Questions

We find it illustrative to include a sample of the questions that Von Behren was asked:

  • "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 ever physically forced or threatened anyone to engage in sexual contact with you?"
  • "Have you ever had sexual contact with someone who was physically asleep or unconscious?"

Trial Court's View

The trial court rejected Von Behren's argument and took the view that the examination's line of questioning did not pose a danger of self-incrimination in a "constitutional sense." More importantly, the trial court stood convinced that the test was designed to illicit answers from sex offenders of a "general" nature, and would not require specific dates, times, or identity of persons. It also took the view that the test was being administered by a medical professional, not a law-enforcement agent, thus somewhat shielding persons in like circumstances.

"We disagree," said the circuit. The Fifth Amendment right against self-incrimination is implicated when a subject's words or statements provide a "link in the chain of evidence needed to prosecute." Thus, the circuit's view was that Von Behren's statements could place him in an "authentic danger of self-incrimination," despite the intended general nature of the answers the questions were designed to illicit.

The court also pointed out that affirmative answers by subjects answering such questions under a polygraph test would face the danger of being looked at differently by testing personnel and investigators. "Moreover, investigators would certainly look at Mr. Von Behren differently if they were made aware that he had physically forced someone to engage in sexual relations with him."

We are inclined towards the view that any polygraph that asks questions about past crimes for which a suspect is not being invested currently runs afoul of the Fifth Amendment, no matter how general the answers might be.

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