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HISTORICALLY, THE MENTAL riod of more than two decades.6 From them their experiences.8 Both law enforcement and
health and probation communities have gath- emerged a phenomenon the authors term the the media uncovered well-publicized cases of
ered information about the history of sex of- “Magical X.” In a significant segment of the data child pornography and sexual exploitation
fenders from self-reports, often via one of base, critical numbers related to the extent of the rings that brought those issues onto the public’s
several standardized sexual history inventory offenders’ criminal behavior and their personal radar screen.9 In the behavioral research com-
and data gathering forms.3 A collection of stud- histories of victimization reverse themselves when munity, Robin Lloyd published a highly re-
ies summarized in 1995 by forensic psycholo- subject to the scrutiny of a polygraph examina- garded book about prostitution among young
gist Anna Salter, however, revealed that tion. In other words, when verified by poly- boys in the United States,10 while psychiatrist
self-reporting often fails to uncover the true graph, the numbers of the offenders’ prior Judith Herman published one of the first sig-
extent of an offender’s sexual history. Not sur- victims rise significantly, while the percentage nificant books on incest,11 and psychologist
prisingly, fear of legal sanctions and family and of offenders who experienced victimization in Nicholas Groth wrote a creative and influen-
societal reproach leads most sex offenders ei- their own lives drops significantly. tial study on the behavior of sex offenders.12
ther to deny their crimes altogether or admit In Congress, the House and Senate Judi-
to the minimum they think necessary.4 Rec- A Brief Retrospective ciary Committees began in 1977 to investi-
ognizing this, many treatment programs have To understand where we are now in this field, gate the child pornography industry, and
begun to use polygraph testing to validate of- knowing where we have been is important. ultimately enacted the first of a series of fed-
fenders’ self-reports.5 This article reviews sev- Three decades ago, the sexual exploitation of eral laws designed to address child sexual ex-
eral previously unpublished research studies children was a subject that came to the atten- ploitation.13 Most states followed with similar
conducted by Hindman on the impact of tion of most people infrequently, if at all. One laws,14 and supplemented mandatory report-
polygraphy on adult and juvenile sex offend- author of an academic dissertation published ing statutes that had passed in every state dur-
ers’ self-reports of offenses and their history of in 1975 observed that “[v]irtually no litera- ing the 1960’s,15 requiring those who have
personal victimization. The methodology of ture exists on the sexual abuse of children.”7 professional contact with children to report
each study varied. The methods include: Fondling and sexually assaulting children to child protection agencies or law enforce-
were against the law then just as they are now, ment whenever there is reason to believe a
1. Self-report with no polygraph, and no
but these laws were not often enforced. The child is being abused or neglected.16
mention of polygraph.
few cases reported to law enforcement were The result of increased public awareness
2. Self-report when the subjects knew they routinely shuttled quietly off to family court, together with the new laws was that reports
would undergo polygraphy. unless the incident involved serious violence. of child sexual abuse and exploitation soared
Many law enforcement agencies viewed such throughout the 1980s.17 Law enforcement
3. Comparison of self-report with and with-
cases as little more than time-consuming so- agencies and prosecutors who once gave such
out polygraphy.
cial work, and child molesters were more of- cases scant attention began to sit up and take
4. Self-report compared with polygraphy in ten the targets of jokes than prosecution. notice. Some created special units to respond
the same subject. During the 1970s and 1980s, a paradigm to such reports, and methods of investigation
shift occurred. Spurred on in part by the improved greatly.18 At the same time, as more
We summarize those studies and related
emerging women’s rights and children’s pro- offenders were convicted of sex crimes, there
research, and make recommendations for
tection movements, people who had been was a corresponding growth in the number
polygraph use with sex offenders in clinical
sexually abused as children, such as Louise of mental health professionals seeking to
settings. The data reported here were gath-
Armstrong, began publishing books about evaluate and treat them.19
ered from hundreds of offenders over a pe-
December 2001 POLYGRAPH TESTING OF SEX OFFENDERS 9
Prevalence of Sexual Abuse the odds of future delinquency and adult Self-Reporting With and
As public interest grew and prosecutions and criminality by 40 percent. Specifically, being Without Polygraph:
treatment programs expanded, an obvious area abused or neglected as a child increased the like- The Oregon Studies
of study was the prevalence of child sexual lihood of arrest as a juvenile by 53 percent, as We culled the data presented in this article
abuse in the general population. One leading an adult by 38 percent, and for a violent crime from the histories of hundreds of sex offend-
researcher, University of New Hampshire so- by 38 percent.28 Other researchers reported spe- ers seen in a treatment program in Malheur
ciologist David Finkelhor, summarized surveys cifically on the trauma of sexual abuse. They County, Oregon over a period of more than
on child sexual abuse in twenty-one countries, found that people who were sexually victimized two decades. During its early years, the clini-
including the United States and Canada. All in childhood have a higher risk of arrest for com- cians there made the same assumption many
found prevalence rates of between seven and mitting crimes as adults than do people who did others did: that sex offenders were victims;
36 percent for women, and between three and not suffer childhood abuse.29 and they were as believable and motivated for
29 percent for men. Most also found that change as people in therapy for other reasons
women were abused 1.5 to three times as of- The Sex-Offender-As-Victim —clinical depression, for example, or erec-
ten as men, that men committed about 90 per- Paradigm tile dysfunction. On this basis, histories were
cent of sexual abuse crimes against children, In the early years of sex offender research and gleaned from the offenders themselves, with
and that between 70 and 90 percent were com- treatment, clinicians typically asked offend- no attempt to verify the data. By 1983, how-
mitted by family members or others known to ers to report on their own early histories. In ever, the program’s clinicians had become
the child victim.20 staggering numbers, they reported that they skeptical about the veracity of the offenders’
had been sexually abused as children. Even self-reported histories, and began to use poly-
Effects of Sexual Abuse some who did not initially claim victimiza- graph examinations to verify them.
As researchers documented the prevalence of tion produced such histories under the influ-
childhood sexual abuse, interest in its effects ence of hypnosis or repressed memory The Prosecutor’s Conditional
increased as well. Study after study has con- therapy.30 Society—even the normally-skep- Immunity Agreement
firmed that childhood sexual abuse is often tical mental health community—readily ac- The polygraph testing was begun in 1983, with
extremely traumatic, and for some victims, cepted such claims, in part at least because the authorization of the local district attor-
results in a lifetime of dysfunction. Formal re- they offered a comforting explanation for the ney,34 who gave polygraphed offenders con-
search comparing abused children to non- otherwise inexplicable behavior of child mo- ditional immunity from prosecution for
abused children has consistently confirmed lesters. Some very reputable and good people unreported prior sexual crimes. This extraor-
what clinical observation of victims has sug- began to believe that “bad” people must have dinary concession from the community’s
gested:21 that they are far more likely than those been treated “badly,” without ever consider- chief law enforcement officer, a crucial piece
who are not abused to display poor self-esteem, ing how many abused people (although per- of the puzzle, was made because of three per-
fearfulness, aggressiveness, withdrawal and/or haps psychologically impaired) do not ceived needs, including:
acting-out, as well as an intense need to please become sex offenders. Almost overnight, the
1. The offender needs to disclose everything
others.22 Children who hide their sexual abuse sex-offender-as-victim paradigm became a
so that the treatment is pertinent.
take on the additional burdens of guilt, shame pearl of conventional wisdom, a staple of tele-
and fear. Abused children may process their vision talk shows and popular print media.31 2. The treatment program needs to have
feelings by withdrawing from family and credibility with defense attorneys, to en-
friends, or becoming angry with those they Challenging the Sex-Offender- courage guilty pleas and save children the
perceive to have let them down. They are at As-Victim Paradigm trauma of participating in a public trial.
increased risk of depression and suicide, and Although it made sense to question these sto-
3. Victimized children need to be identified
may re-enact their experience by becoming ries— sex offenders’ use of cognitive distor-
early to begin the process of healing.
sexually precocious themselves or by abusing tion 32 to justify behavior was, after all,
other children.23 well-known—it was not until offenders’ self- The immunity agreement was conditioned
reports began to be compared with reports on the offenders successfully completing five
Early Offender Studies verified by polygraph that the sex-offender- years of treatment and probation supervision,
Professionals involved in offender studies as-victim idea was challenged and discredited. and not reoffending. The law enforcement
have long recognized that the “causes” of such This finding is consistent with that of Hansen rationale was threefold—hanging offenders’
behavior are almost invariably complex.24 and Bussiere, the Canadian researchers, prior offenses over their head is a management
Early studies often focused on traumatic whose highly regarded meta-analysis of sixty- tool that helps ensure compliance with proba-
events in the offenders’ developmental histo- one treatment outcome reports published tion/treatment rules; overcoming the secrecy
ries,25 particularly the offenders’ reports of between 1943 and 1995, covering 28,972 sex and identifying other victims helped the offend-
their own childhood abuse.26 One study re- offenders from six countries, found that child- ers in treatment; and it also helped the victims
ported a finding common to many: that “[a] hood victimization is not a predictor of who could be identified get treatment.
majority of sex offenders experienced physi- whether the person will commit another
cal and/or sexual abuse as children.”27 Re- sexual offense.33 Polygraph and the Therapeutic
search sponsored by the National Institute of Process
Justice found that childhood abuse increased The polygraph tests were administered after
sentencing, as part of the therapeutic process.
10 FEDERAL PROBATION Volume 65 Number 3
testing does not unduly burden the privilege sult of the first. Upholding Dods’ conviction, sexual deviancy. The defendant further
against self-incrimination, but neither revo- the court decided that unless deliberately co- agrees to submit to polygraph testing to
cation of probation nor any other substantial ercive or improper tactics were used, the mere verify his/her sexual history, and to peri-
penalty can be imposed because of a legiti- fact that Dods made an unwarned admission odic polygraph monitoring during treat-
mate invocation of the privilege.48 does not presume compulsion. The court ment to help ensure compliance with pro-
That approach is not universal, however, noted that Dods’ probation could have been bation/treatment rules. The defendant fur-
so without an express immunity agreement, revoked if he had refused the examination, but ther agrees to waive confidentiality and
an offender may be in jeopardy if he admits to didn’t address the issue of self-incrimination allow the treatment provider to make writ-
new crimes in treatment. An Idaho state case raised in Crowe. Instead, it found that even if ten reports regarding his/her treatment to
addressed the implications of requiring sex the trial judge was wrong to admit the first the probation department, and to contrib-
offenders to be truthful about their sexual his- statement, the error was harmless because the ute to the cost of such treatment as di-
tories as part of court-ordered treatment.49 A second statement was admissible anyway. Since rected by the probation department.55
man named Crowe pled guilty to sexual abuse the first statement had been voluntary, the
of a minor and was placed on probation. The court reasoned, and since the probation officer Conditional Immunity for
terms of his sentence required his completing had obtained a knowing and intelligent waiver Previously Undisclosed Crimes
a community-based sex offender therapy pro- of the defendant’s Miranda rights before the
We also strongly recommend using conditional
gram, reporting any contact with minor chil- second interview, the second statement did not
immunity agreements, covering statements
dren, and submitting to polygraph have to be suppressed.
made by offenders in treatment, about previ-
examinations. Crowe signed a standard treat- Two lessons can be gleaned from these
ously undisclosed sexual crimes that occurred
ment contract that allowed his counselors to cases. From the perspective of encouraging sex
before the conviction and were not known to
share information with his probation officer. offenders to be honest and forthcoming in
the government. Without such agreements, of-
During a treatment session, Crowe failed a treatment, they underscore the need to have a
fenders will either run the risk of negative con-
polygraph examination and admitted that he clear immunity agreement. From the perspec-
sequences as a result of their honesty or, more
had inappropriately touched his ten-year-old tive of aggressive and successful prosecution,
likely, become further entrenched in denial and
niece. At the counselor’s request, Crowe made they point to the importance of training po-
dishonesty just at the point where the justice
verbal and written admissions to his probation lygraphers to give Miranda warnings before
system is attempting to impress on them the
officer about the incident, and as a result his they begin court-mandated polygraph testing.
importance of acknowledging guilt. The follow-
probation was revoked and he was sent to
prison. Crowe appealed, arguing that the state- Implications of Polygraph ing paragraph, or one similar, can be inserted
ments should not have been used against him Testing in Negotiated Pleas into plea agreements to accomplish the goal of
because he had been threatened with sanctions and at Sentencing conditional use immunity:
if he refused to answer questions. The Idaho As the studies reported in this article amply As a condition of court-mandated evalu-
court held that when the state compels an in- demonstrate, it is common for sex offend- ation and treatment, the defendant will
dividual to forego the privilege against self-in- ers to lie about the numbers of their victims, be required to truthfully reveal his entire
crimination by a threat to impose a penalty, falsely claim a history of being sexually sexual history. In recognition of the fact
the Fifth Amendment applies, even if it is not abused themselves, and minimize or deny that full disclosure of that history is a nec-
invoked. The ruling, however, was limited to their juvenile sex offenses. We therefore essary component of effective treatment,
situations in which the statement obtained was strongly recommend that all sex offenders the government agrees that the defen-
to be used in a new criminal proceeding. Since be evaluated and treated by mental health dant’s admissions to sexual crimes that
the statements were used against Crowe in a professionals who have developed a specialty occurred prior to conviction for the in-
probation revocation hearing, the court found in sexual deviancy, who include polygraph stant offense, excluding homicide, and
them admissible.50 testing in their programs,52 and who adhere previously unknown to the government,
The Washington State Court of Appeals to Code of Ethics and ATSA Practice Stan- during court-ordered psycho-sexual
addressed the issue differently, in a case turn- dards and Guidelines.53 A paragraph such as evaluation and sex offender treatment,
ing on whether statements made by a proba- the following, inserted in a plea agreement will not be used against the defendant in
tioner during and after a required polygraph or conditions of supervision, would accom- a new criminal prosecution. See 18 U.S.C.
exam were admissible in a separate criminal plish that goal. 6002 and Kastigar v. United States, 406
proceeding.51 In that case, a sex offender U.S. 441 (1972). However, this use im-
The defendant agrees that he will submit
named Dods admitted a new offense against a munity is expressly conditioned upon: 1)
to an assessment for sexual deviancy con-
child to a polygraph examiner. After the test, the defendant successfully completing
ducted by a mental health professional
the examiner sent Dods to see his probation sexual deviancy treatment, and 2) the de-
experienced in treating sexual offenders,
officer. The officer advised Dods of his fendant not materially violating the rules
such as a member of the Association for
Miranda rights and he repeated his admissions. of probation/supervised release. If the de-
the Treatment of Sexual Abusers
Later, Dods was convicted of the new offense fendant fails to complete all aspects of
(ATSA).54 If treatment is indicated, the
and challenged the admissibility of both state- treatment or fails to comply with all pro-
defendant, once released from any term
ments, claiming that the first should have been bation requirements, then the use immu-
of incarceration, will enter and success-
suppressed because he was not given a Miranda nity agreement is rescinded.56
fully complete a program of treatment for
warning, and the second because it was the re-
14 FEDERAL PROBATION Volume 65 Number 3
30
Compare Elizabeth Loftus & Katherine Ketcham, missions of Victims and Offenses in Adult Sexual bationers and Parolees: The Issue of Polygraph Sur-
The Myth of Repressed Memory, (St. Martin’s Press) Offenders, 12 SEXUAL ABUSE: J. RES.& TREATMENT, 123, veillance, 60 FED. PROBATION 54-58 (1996). See also
(1994), with Ross E. Cheit’s Recovered Memory 129 (April 2000) (also citing previous published Washington v. Jacobsen, 977 P.2d 1250 (Wash. Ct.
Project at Brown University, which claims to have research findings achieving similar results. See the App. 1999) (mere fact that juvenile was ordered to
documented 80 corroborated cases of recovered Colorado Department of Corrections web site, attend pre-sentence evaluation and undergo poly-
memory. See <http://www.brown.edu/Departments/ <http://www.doc.state.co.us/Sex%20Offenders/ graph testing did not render it “custodial” or “com-
Taubman_Center/Recovmem/Archive.html>. Research.htm#Reasearch>. pelled” so as to make Fifth Amendment privilege
31 40
Sharon Begley, “What Is a Pedophile?” Newsweek, Brian Holmgren, Forging New Alliances - Propos- self-executing and it was not error to admit evidence
Mar. 19, 2001, at 48. als for Change in Managing Sex Offenders Within about the test results at a disposition hearing).
32 44
See James M. Peters, “Assessment and Manage- the Criminal Justice System, in THE SEX OFFENDER: Commonwealth v. Hill, 2001 WL 557579, *2 (Va.
ment of Sex Offenders: What Prosecutors Need to THEORETICAL ADVANCES, TREATING SPECIAL POPULA- Cir. Ct. 2001).
45
Know,” in Prosecuting Online Child Prostitution TIONS AND L EGAL D EVELOPMENTS, V OL . III, State v. Reyes, 2 P.3d 725, 727 (Hawaii App.,
Cases (J. PETERS ED.) (United States Department of (B.SCHWARTZ, ED.) (1999). 2000).
41 46
Justice, USABook) (in press), explaining that sex See State v. Jacobson, 977 P.2d 1250 (Wa. Bankes v. Simmons, 265 Kan. 341, 963 P.2d 412,
offenders tend to have distorted thinking (cogni- App.1999) rev. den. 11 P. 3d 825 (2000) (the Court cert. denied, Hannigan v. Stansbury, 119 S.Ct. 629
tive distortions) that helps them deny, minimize, of Appeals declared that a trial judge did not err in (1998).
47
justify, and rationalize their aberrant behavior, and ordering a juvenile sex offender to undergo poly- Carswell v. State, 721 N.E.2d 1255, 1265 (Ind.
also reduce guilt and responsibility for that behav- graph testing as part of a court-ordered evaluation, App. 1999) (noting that “[t]he purpose behind this
ior. Cognitive distortions are what allow the abuser and in admitting evidence about the test results at condition is to help ensure that offenders fully reveal
to overcome inhibitions and ultimately progress a disposition hearing); Ex Parte Charles Anthony their sexual histories, information that is essential to
from fantasy to behavior. See e.g., Father Says He Renfro, 999 S.W.2d 557 (Tx. App.1999) pet. for the development of effective treatment programs. The
Raped Girl To Teach Her About Sex, Associated disc’y rev. ref’d (Jan 19, 2000)(a polygraph require- goal of polygraph examination is to obtain informa-
Press, April 9, 2001, describing the sentencing of a ment was a reasonably related probation condition tion necessary for risk management and treatment,
Charleston, West Virginia man who “says he re- that did not violate convicted child molesters’ right and to reduce the sex offender’s denial mechanisms.”
peatedly raped his 13-year-old daughter to teach against self-incrimination); United States v. Wil- Id. at 1266, fn. 9.
48
her about sex and birth control insists he acted son, 172 F. 3d 50, **3 (6th Cir. 1998) (unpublished) Commonwealth v. Hill, 2001 WL 557579 (Va. Cir.
‘from a parent’s point of view and not a pervert’s.’” (decision allows the United States Probation Of- Ct. 2001); Mangarella v. State, 17 P.3d 989 (NV 2001).
33 49
R. Karl Hanson & M.T. Bussiere, Predicting Re- fice to use both polygraphy and penile plethysmo- State v. Crowe, 952 P.2d 1245 (Idaho 1998).
50
lapse, A Meta-Analysis of Sexual Offender Recidi- graph polygraphy during an offender’s term of su- Ibid. Accord United States v. Phelps, 955 F.2d 1258,
vism Studies, 66 J. CONSULTING & CLINICAL PSYCHOL., pervised release); Searcy v. Simmons, 97 F. Supp. 1263 (9th Cir.1992); and United States v. Gonzalez-
No. 2, 348-62 (1998), also available at <http:// 2d 1055 (D. Kan. 2000) (reviewing the case law and Mares, 752 F.2d 1485, 1489 (9th Cir.1985).
51
www.sgc.gc.ca/>, and cited in State v. Sedgmer, holding that requiring inmates in a sex offender State v. Dods, 941 P.2d 1116 (Wash. Ct. App.
2000 WL 863184, 7 (Ohio Com. Pl., June 8, 2000 treatment program to participate in penile plethys- 1997).
52
(No. 99-219CR). mograph examinations did not violate their sub- James M. Peters, Assessment and Treatment of Sex
34
Jacques DeKalb was the District Attorney in stantive due process rights); Lile v. McKune, 224 Offenders: What Attorneys Need to Know, 42 AD-
Malheur County who originally granted conditional F.3d 1175 (10th Cir. 2000) (treatment program’s VOCATE (IDAHO BAR ASS’N.) 21, 22 (Dec. 1999).
53
immunity for previously undisclosed sexual offenses. requirement that inmate disclose his sexual history See Polygraphy at 44-48 in Practice Standards and
Pat Sullivan and Dan Norris, who succeeded him in in a way that could subject him to criminal pros- Guidelines for Members of the Association for the
that office, continued the practice. ecution intrudes upon inmates Fifth Amendment Treatment of Sexual Abusers (2001). See <http://
35
Other programs ask more pointed questions, such rights); See also, Joel E. Smith, Annotation, “Ad- www.atsa.com>.
54
as “besides the seven victims you have told me about, missibility in Evidence of Confession Made by Ac- The Association for the Treatment of Sexual
have you ever forced anyone else to have sexual contact cused in Anticipation of, During, or Following Abusers (ATSA) is a nonprofit organization with a
with you.” Peggy Heil, Colorado Department of Cor- Polygraph Examination,” 89 ALR3d 230 (1979 membership of approximately 2,000 professionals
rections, email communication, January 29, 2001. (June 2000 Supplement). worldwide. ATSA publishes an ethical code and
36 42
Jan Hindman & James M. Peters, Research Dis- See Annotation, Propriety of Conditioning Proba- practice standards and guidelines to which all
putes Assumptions About Child Molesters, 7 Nat’l. tion on Defendant’s Submission to Polygraph or members agree to adhere. To identify ATSA mem-
Dist. Attorneys Ass’n Bulletin 1, 3 (July/August Other Lie Detector Testing, 86 A.L.R.4th 709, S 9(a) bers in your area and to obtain a copy of the ATSA
1988). These results were also published in James at 726-27 (1991). See also State v. Naone, 990 P.2d Code of Ethics or the ATSA Standards and Guide-
M. Peters, Patricia Toth, & Janet Dinsmore, Why 1171, 1182-87 (Hawaii App.1999); People v. Miller, lines, contact ATSA at: 4900 S.W. Griffith Drive,
Prosecute Child Abuse?, 34 S.D. L. REV. 649 (1989), 208 Cal.App.3d 1311, 256 Cal.Rptr. 587 (1989); Suite 274, Beaverton, OR 97005. Phone
and under the same title in THE PROSECUTOR, vol. Mann v. State, 269 S.E.2d 863 (Ga.1980) (a condi- 503.643.1023; <http://www.atsa.com>.
55
23, no. 2, p. 30, 33 (1990). tion requiring a probationer to submit to polygraph This condition is used in certain sex offender plea
37
See supra, endnote 19. tests every two months did not violate probation- agreements prosecuted by the United States
38
The offenders had all pled guilty, usually to intra- ers’ right against self-incrimination, and such con- Attorney’s Office in the District of Idaho.
56
familial sex crimes. The therapists were the same, the dition could be imposed, in the discretion of a trial Ibid.
57
program requirements were the same and all had use judge, with no more than a general finding of the The authors gratefully acknowledge Susan
immunity agreements from the District Attorney. court that it was reasonably necessary to accom- Sachsenmaier, Ph.D., Ruth H. Williamson-
39
See: Sean Ahlmeyer, Peggy Heil, Bonita McKee plish purpose of probation). Kirkland, R.N., M.S.N. Sean Ahlmeyer, Peggy Heil,
43
& Kim English, The Impact of Polygraphy on Ad- Risdon N. Slate & Patrick R. Anderson, Lying Pro- and Jean McNeil for their helpful substantive com-
ments and editorial suggestions.