The 10th Circuit Court of Appeals issued a decision today stating that a registrant’s Fifth Amendment right to remain silent was violated when the government sought to return him to prison because he refused to answer questions regarding his sexual history during a polygraph exam.
The questions the registrant refused to answer are (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 ever physically forced or threatened anyone to engage in sexual conduct with you and (4) have you ever had sexual contact with someone who was physically asleep or unconscious?
The court noted that the registrant’s affirmative answer to any one of these questions could have been interpreted as a confession of illegal conduct. The court also noted that the government’s threat to revoke the registrant’s probation for properly invoking his Fifth Amendment privilege is the type of compulsion the government may not impose. The court further noted that an individual is compelled “as soon as the government threatens him with a substantial penalty”.
In the case, the registrant was required to successfully complete a sex offender treatment program mandated by the Colorado Sex Offender Management Board. The registrant was required to sign an agreement that included a requirement to take a sexual history polygraph and allowed his treatment provider to report any sexual crimes discovered during the polygraph exam to appropriate authorities.
When the registrant refused to answer sexual history questions during his polygraph exam, the treatment provider expelled him from the mandatory treatment program. This expulsion, in turn, subjected the registrant to potential revocation of his supervised release and a prison sentence.
In its decision, the court noted that the terms of the sex offender treatment agreement were non-negotiable. The court also noted that its decision was based in part upon the registrant affirmatively asserted his Fifth Amendment right to remain silent during his polygraph exam.
As a result of this decision, the registrant is not required to answer questions regarding his sexual history during a polygraph exam.