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Sex Offender Treatment Disclosures Barred in Later Prosecutions

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The use of the compulsory treatment disclosures at sentencing violates the Fifth Amendment privilege against self-incrimination.

By Attorney Elisabeth K.H. Pasqualini, Sex Crimes Lawyer, Harrisburg, PA

Recently, in United States v. Bahr, 2013 U.S. App. LEXIS 19103 (9th Cir. Or. Sept. 16, 2013), the 9th Circuit Court of Appeals held that it was an constitutional violation to use prior admissions made during compulsory polygraph and "workbook" exercises for sentencing proceedings on a separate and distinct charge that occurred after the disclosures.

In 2003, Bahr was convicted of third degree rape under Oregon state law. Upon his release to supervision, Bahr was required to complete an approved sex offender treatment program. The terms of his supervision required adherence to all rules and conditions of the program and noted that the program could include polygraph testing. Bahr was indeed required to take a "full disclosure" polygraph test regarding his sexual history. During the test, he revealed other sexual offenses.  Bahr admitted in a workbook that he had sexually abused eighteen children. When the government prepared the pre-sentence report ("PSR") in this case involving possessing child pornography, it included Bahr's admissions made during the polygraph disclosure and in the workbook exercise ("treatment disclosures"). Bahr moved to suppress the treatment disclosures. The district court denied the motion.

The Court held that the use of unconstitutionally compelled statements to determine a sentence in a later, unrelated criminal proceeding is unconstitutional.

If you've been charged with a sex crime, such as possession of child pornography, or are on probation/parole for such offenses, it's best to have a lawyer that can explain your rights and intervene for you if necessary.  You may contact the office of Shaffer & Engle toll free or email us today.

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