Therapy for convicted sex offenders: pursuing rehabilitation without incrimination.

• Author: Kaden, Jonathan

"Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority."(1)

1. INTRODUCTION

   The Fifth Amendment right against self-incrimination is a fundamental protection against government abuse of an individual's autonomy, privacy, and dignity.(2) Courts, however, have unevenly applied the right to convicted sex offenders who, as a condition of court-ordered therapy, must admit responsibility for their crime.(3) In some cases, if an offender does not admit responsibility for a crime, therapists terminate him from therapy, and courts punish him with probation revocation and imprisonment.(4) In other cases, courts have held that sentences which penalize a convicted offender for refusing to admit to a crime violate the offender's Fifth Amendment right against self-incrimination.(5)

   Whether courts hold that the Fifth Amendment protects a convicted offender from having to admit his guilt turns largely on how the offender pled at trial. When a defendant pleads guilty, he waives certain constitutional rights, including the right against compulsory self-incrimination.(6) Therefore, defendants who have pled guilty have been penalized for denying their offenses in therapy. If a defendant pleads not guilty, courts have recognized his right, absent a grant of immunity, to continue to maintain his innocence without being subjected to the concomitant penalties of probation revocation and imprisonment.(7) However, a grant of immunity does not preclude prosecution for perjury,(8) so even immunized offenders who pled not guilty and testified on their own behalf at trial are still at risk of unwilling self-incrimination if they are required to admit responsibility in therapy. In addition, when a defendant enters either a nolo contendere(9) or Alford plea,(10) neither of which requires the defendant to admit commission of the crime, courts hold that the right against sell-incrimination does not protect the offender from having to admit responsibility for the crime in treatment.(11) An offender who enters a nolo or Alford plea forgoes the same rights as an offender who pleads guilty, including the right against self-incrimination.(12) These outcomes present problems. Offenders who plead not guilty and testify in their own defense at trial face an unsavory choice between confessing guilt in therapy and risking that their admission will foreclose rights of appeal and lead to further incrimination for perjury or other crimes, or refusing to admit guilt and risking removal from therapy and revocation of probation. Offenders who plead not guilty and testify in their own defense, and then admit guilt in therapy risk further incrimination for two reasons: (1) if completion of sex offender therapy is predicated on an admission of guilt, and the offender completes therapy, his probation officer will know that he admitted guilt and committed perjury at trial, and (2) therapy for sex offenders is often characterized by more limited confidentiality than in traditional client-therapist relationships, so an offender's admission of guilt may, and in some cases must, be disclosed.(13) Offenders who enter nolo or Alford pleas may refuse to admit responsibility for an offense in court, yet often must admit guilt in therapy. Though this presents no constitutional problems, offenders who have refused to admit guilt in court may not be inclined to admit guilt in therapy either; thus their participation in therapy may be terminated, leaving them untreated and more dangerous than if they had been meaningfully involved in therapies that did not require an admission of guilt.(14)

   To preserve Fifth Amendment rights in the case of convicted sex offenders sentenced to therapy subject to such conditions, a state must offer offenders who pled not guilty and testified in their own defense immunity from future prosecution and protection against probation revocation. Furthermore, to facilitate the rehabilitation of more convicted offenders, courts, legislatures, and therapists ought to give greater consideration to therapy programs that successfully treat sex offenders who remain unwilling to admit responsibility for an offense. Such therapy programs are also essential for resolving the dilemma faced by offenders who have entered nolo or Alford pleas expressly to avoid a formal admission of guilt. Courts that require these offenders to admit responsibility as a condition of continued participation in therapy and probation demand inconsistent responses from the offenders regarding the offense underlying the conviction. When courts allow offenders to enter nolo or Alford pleas to avoid an admission in court, yet require them to accept responsibility in therapy, courts may set these offenders up to fail to adhere to the requirements of therapy. Offenders who avoided admitting guilt in court may be just as inclined to avoid admitting guilt in therapy. Though not constitutionally required, wider availability of therapy programs offering treatment to such offenders who refuse to admit guilt would allow more offenders who currently are removed from treatment to receive treatment.

   This Comment proposes that the state must offer immunity from future prosecution, protection against probation revocation, and access to treatment that does not require an admission of responsibility in order to preserve the Fifth Amendment right against self-incrimination for convicted sex offenders in court-mandated therapy. While offenders who enter nolo contendere or Alford pleas waive their Fifth Amendment rights against self-incrimination, they would nonetheless benefit if courts sentenced them to treatment programs that do not require admissions of guilt prior to entrance, or as a condition of continued participation in the program. More convicted offenders would receive treatment if courts and therapists cooperated to increase access to such therapy programs. This course of action would serve the values of autonomy, privacy, and dignity that are protected by the Fifth Amendment, facilitate the rehabilitation of convicted offenders using therapies previously ignored by the courts, and further the state interest in protecting its citizenry. Part II of this Comment explores the historical evolution of the Fifth Amendment right against self-incrimination. In the context of an inquisitorial judicial heritage, the framers of the Fifth Amendment intended to protect basic human dignity and autonomy against the potentially coercive powers of government.(15) These values underscore the importance of tailoring sentencing and therapy for sex offenders so that they are least intrusive to the offender's rights. Part III explores traditional and alternative theories of treating sex offenders. Most courts accept without question the traditional notions that admission of responsibility is a precursor to treatment and some coercive pressure in treatment is effective at gaining such an admission.(16) Other theorists posit that less confrontational treatment is more effective at overcoming denial, and some studies show evidence of effective treatment without focusing on responsibility for a crime.(17) Part IV outlines courts' current treatment of the dilemma that convicted sex offenders face between the possibility of future incrimination that accompanies an admission of responsibility and the termination of treatment and revocation of probation that follows a denial. Last, Part V examines the current case law and various modes of treating sex offenders in the context of the interests protected by the Fifth Amendment right against self-incrimination. This Part concludes that courts and therapists neither sufficiently preserve convicted sex offenders' Fifth Amendment rights, nor offer offenders adequate treatment options. When offenders have testified in their own defense at trial they should be afforded the right to deny that they committed a sex offense in therapy without fearing probation revocation or imprisonment. Modes of treatment previously given little attention by the courts offer effective therapy without focusing on an offender's admission of responsibility and allow more offenders to receive treatment.

2. THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF INCRIMINATION

   Most scholars agree that Justice Goldberg's statement in Murphy v. Waterfront Commission(18) on the purposes and policies of the Fifth Amendment privilege against self-incrimination endures as an accurate modern assessment of the privilege.(19) Justice Goldberg wrote:

   [The privilege against self-incrimination] reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiting the government to leave the individual alone until good cause is shown for disturbing him and by requiting the government in its contest with the individual to shoulder the entire load;" our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life; [and] our distrust of self-deprecatory statements....(20) The privilege protects the dignity of the individual by ascribing sanctity to his freedom to keep private information about himself.(21) This essential conclusion grows out of a rich legal history that merits exploration. This Part examines the historical development of the privilege against self-incrimination in England and the United States, the elements necessary for its modern invocation, and its historical and enduring purposes.

   1. THE HISTORICAL DEVELOPMENT OF THE PRIVILEGE

      The origins of the privilege against self-incrimination in...