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MN: High Court Weighs Boundaries of Sex Offender Self-Incrimination

The Minnesota Supreme Court heard arguments Tuesday in the case of a man who claims sex-offense confessions made to his probation officer as part of a court-mandated program are protected by the Fifth Amendment. Full Article

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Walking the fine-line of self incrimination and obeying the rules of treatment during a poly for full disclosure of history. No matter what your history is it can be used against you (twisted in their favor) in treatment which it did for me a few times.Try to cooperate with full disclosure and get banged during group, don’t cooperate and get banged during group – no win situation.

The three years I spent in so=called treatment had to be the worst time in my life.

We were told that we could not state the “Fifth” during a poly or even during group sessions if asked a question. If we did we would be threatened to be violated.

I made absolutely sure that any homework assignment that I handed in was type written and never ever in my own handwriting.

i will tell my story, very unique.
1995 , received 10 year probation for a sex crime, was in group therapy with a therapist whose sole purpose was to send everyone to prison. my victim, contacted me for help with getting a car, i reported this to group, who reported to my p.o., another who hated so’s. i was violated, judge said he had no problem with the contact, but had a problem with me sitting in a mall eating and watching people. i reported this to the group, they had no problem with this. received 3 year sentence, i appealed due to confidentiality between me and doctor and was granted an appeal bond, part of the bond requirements was to make anything said in therapy non reportable, i also got to choose my therapist. he was very reasonable.
it went all the way to supreme ct, they chose not to hear it. it took 8 years to finally find out it was not heard. 2 years before i was to be released off of another probation, not sex offense, they changed officers on me, the new one kept asking about the appeal, the old one did not. i also received a non so officer after the appeal, the old was was pissed i got out on appeal…..
there was never a warrant issued until after the new po found out
go figure

I encourage everyone to read the 10th Circuit’s published decision in U.S. v Von Behren 15-1033, (10th Cir., 2016). This precedent in that circuit allows anyone to assert the 5th Amendment right during probationary questioning. This decision came from a Colorado probationer refusing to answer certain questions during a sexual history polygraph test.

The Court held that a person in sex offender treatment can refuse to answer any question “where the answers might incriminate [them] in future criminal proceedings.” To qualify for the 5th Amendment privilege, “a communication must be testimonial, incriminating and compelled.” Polygraph questions are unequivocally testimonial. Although questions regarding any crime of conviction are fair game, a probationer can invoke his right against self incrimination for other questions that admit to any other crime, sexual or not.

The Court also concluded that a threat to revoke supervised release is sufficient to be considered compelled speech. Also note that the probationer must explicitly invoke his 5th Amendment right to preserve that right for a specific question. It is not enough to remain silent.

Although this strictly applies only to the 10th Circuit, it is certainly persuasive in other circuits and–since it represented a U.S. constitutional right–in the states.


I agree wholeheartedly that every offender should be familiar with case law. As a general rule under the Rules of Federal Procedure for Habeus Relief any individual who is on probation, supervised release under the 85% rule or civil committed is “in custody” therefore anything said can be used by the state.
In this case the threat of revoking probation was implied, if not explicitly conveyed, for failure to comply with any portion of the treatment programs. It becomes compelled speech therefore it should not be admissable. However, some LE consider the 5th Amendment assertion by a probationer an admission of guilt and non-compliance and issue a revokation of release or probation.

Kind of insane that this is even has to be questioned

The tactic of forcing a “voluntary self-disclosure” is not new. Beware of any forms that make you state you are participating voluntarily. Don’t sign them, or cross out the sections that use that language and write “as required for compliance with terms of supervision” or similar before signing. It will make them furious, but it keeps them from violating constitutional boundaries in their dealings with you.

LE doesn’t care about rights or the Constitution. I think they would feel quite at home in Russia or North Korea.

When LE try to stick it to former offenders during supervision, they also forfeit the value of treatment, both as a function to help the individual move forward productively, but also in the value of the information disclosed in order to understand the problem of sexual offending better.

Having a more fuller understanding of the spectrum of sexual offending can help society provide more services for at risk individuals, especially younger persons, before the cycle of offending begins. It can also help better manage the problem, where (I believe) many cases could be diverted from the criminal justice system to family courts. Skillful employment of the scalpel of court-ordered therapy may ultimately prove more effective than wielding the blunt instrument of incarceration in curbing the vast majority of sexual crime.

– Well said. I went down that road & got hit with a “therapy violation” though the wording of it was super vague. Anyway, I was fortunate enough to 1) have the $ to deny every “offer” the judge made to resolve it (because I knew I did not violate their “treatment rules”) and 2) I did a lot of homework which made me confident enough to counter every accusation. (to my lawyer of course, who was dumbfounded by me). The prosecution looked like fools for the year we were in court. The judge was forced to call a hearing because I would not admit to this nonsense violation. But judge didn’t want that hearing to happen because I believe he was not a fair judge and would Not put the prosecution in such a poor position. So he made me a final offer, admit to the violation and you are released from probation 5years early. I accepted. If I didn’t, probation would have nailed me on some other bs and the judge HATED me!!!
Moral of the story. Don’t be afraid & Therapy will also sweet talk you guys, but they are wolfs in sheep’s clothing and extremely unethical. Wake UP!! Do your homework. It’s easy. Don’t be afraid!! Cross out what is not really required…but they will try and trick you!! Type written papers not hand. Use silly names for ex’s and friends, not even first names as they demand!! etc.. etc. I think they are criminals along with probation but that’s just an opinion. Their “treatment” as they called it, did damage me.

The overwhelming majority of sex offenses are the result of poor judgment, not some underlying mental health issue. For most, there is no “cycle of offense.” They did something stupid and may have done it again if they got away with it. But after getting caught and going through our wonderfully fair and impartial court system, it doesn’t happen again. Supposed “cycle” broken.

I’m not saying there aren’t some seriously disturbed people on the registry – there certainly are. But the silly court ordered “treatment” programs (essentially a substance abuse program, substituting sex and children for drugs) don’t do them a bit of good. A substance abuse counselor can’t treat an actual, competently diagnosed pedophile or nymphomaniac any more than a lawn mower mechanic can perform open heart surgery. The only reason that such counselors can claim a high success rate is that more often than not, there’s nothing to “treat.” An isolated act of stupidity is not a mental health problem.


How is it that the law presumes sanity when crimes are committed, judges verify sanity at trials and plea hearings, “treatment” is mandatory in prison, and yet somehow the newly released inmate is somehow crazy enough to warrant more “treatment”?

How is it that courts can’t make waiving the 5th a probation condition, but can require “treatment” programs that cannot be completed without waiving the 5th?

How is it that courts recognize that polygraphs are inaccurate (to say the least), yet swear by them solely in cases regarding sex offenses?

And finally, how can interrogations – excuse me, interviews – such as the ones described here not compelled when no matter what the target said, he would be returned to confinement?

I’ve been searching for these answers for about 5 years now. If anyone has the slightest glimmer of a compelling answer to any of the above, please share it.

THE 5TH is absolute!
I always begin FTR cases with asserting it absolutely. When Court asks me if i want a lawyer i say, “Judge, i hesitate to say even that.” and assert it again. It pisses them off and they always try to get around it. They usually do so by saying ” I’m not asking about the crime” or whatever but i say ” Nevertheless I am remaining silent on the lawyer issue. ” IMO the time for lawyers is done.

So I went through treatment and probation in MN. I didn’t have any other offenses to report in treatment but at that time if you did the probation officer would report this with a recommendation not to prosecute and they would not prosecute as long as the offense was before the one you were charged with. I actually read the appeals court decision on this months ago (I browse all the appeals court releases for MN) and was quite surprised by their ruling based on my experience. Either way, at least in my case — and I think a good criminal defense attorney would to this – My plea agreement specifically stated that they agreed not to charge for any past sexual offenses that may come up which occured prior to this one. I’m sure he put this in there in case of this exact reason. I knew people in treatment though that had no such guarantee, admitted to some new offenses and were not charged.

Would love your thoughts, please comment.x