Court finds compelled, incriminating, polygraphs unconstitutional

A federal appeals court in Colorado ruled earlier this year that sex offenders cannot be required to answer incriminating questions on polygraph tests s a condition of supervised release. The decision came in the case of Brian Von Behren, who was required by his sex offender treatment provider to undergo a sexual history polygraph.

The polygraph included four potentially incriminating questions concerning prior sexual conduct: 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 contact with you? and 4) Have you ever had sexual contact with someone who was physically asleep or unconscious? Behren could refuse to answer only one of the four questions.

He filed objections with the U.S. District Court for the District of Colorado, arguing the questions violated his Fifth Amendment right against self-incrimination. On August 26, 2014 the district court sided with Behren, ordering that his conditions of supervised release be modified to “exclude any requirement that he admit to a criminal offense other than his offense of conviction.”   

Read more about the decision, and potential impacts for sex offenders nationwide, in this story from Prison Legal News.

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