Problem of Sexual Offending and the Polygraph

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The problem of sexual offending is an issue that has transcending throughout the centuries and is an international problem that is not easily addressable. Within the United States, laws enforcing the maintenance and supervision of sexual offenders have altered with the changing needs of society; from ideologies of civil commitment to actions of registration and community notification. While no consensus has been determined that definitively handles the monitoring and treatment of sexual offenders, tools have been created which have greatly improved the ability for treatment providers and probation officers to deal with this unique population.

Polygraph can accomplish many things that a traditional therapy or probation setting cannot begin to do; get inside a person's thoughts to determine truth and lies. Many times, even the intimidation created by the polygraph can produce admissions that otherwise the person would never have confessed to. Sex offenders are the ideal subjects for polygraph examinations because they have a lot to lose if they are caught violating their conditions of treatment and probation. Their "fight or flight" response is idyllic for the conditions that the polygraph measures because there is a third party involvement which causes the necessary amount of fear and response from the subject.

Within the realm of sexual offending, polygraph has been utilized as a method and tool to detect deception and provide assistance in the treatment and monitoring of offenders. While many believe that polygraph is an instrument that is plagued with errors and inconsistency, the polygraph has made vast strides with sexual offenders and is a practice that has improved treatment techniques and probation practices in many different ways. The approach of post-conviction sex offender testing begins with a collaborative effort between the polygrapher, the treatment provider, and the offender's probation officer. Without the effort of all three of these entities, the polygraph will be ineffective.

Risk Management through PSCOT

Polygraph testing has made remarkable strives in the realm of supervision and monitoring of sexual offenders. One study (English, Jones, Pasini-Hill, Patrick, & Cooley-Towell, 2000) of 181 sexual offenders before and after polygraph testing showed stunning results. During polygraph testing, there was an 80% increase of offenders admitted to having male victims, a 190% increase in offenders admitting to male and female victims, and a 230% increase in offenders admitting to adult and juvenile victims. There was a 60% increase in offenders admitting to engaging in high risk behaviors and a 196% increase in offenders admitting to being engaged in more than one high risk behavior. Many studies have found similar results; showing that offenders disclose more information when they are presented with polygraph testing versus before polygraph testing. In a study by Hindman and Peters (in press), they found that offenders who were not required to submit to polygraph testing had an average reporting of 1.2 victims, which then increased to 1.5 victims when they were told to give a complete sexual history. The group which was required to submit to polygraph testing reported an average of 1.3 victims which then increased to 9 victims when they were given a sexual history polygraph. In the same study, they found that the 65% of the non-polygraph group reported being abused sexually as children and 21% reported that as children they sexually abused others. When asking these same questions to the polygraph group, they found that only 29% reported being sexually abused and 71% admitted that they abused others sexually when they were minors. The innate fear of detection for the polygraph group showed significant differences from the group that did not have to submit to polygraph testing.

These exponential increases show that the polygraph is a tremendous tool in gaining admissions which the offender would otherwise have kept to themselves.

Polygraph testing for post convicted sexual offenders has emerged as a successful tool for the rehabilitation and monitoring of sexual offenders within the community. For treatment purposes, the goals are simple; reduce the number of sexual re-offenses, reduce the number of general offenses, change offenders to be productive members of society (Kokish, 2003). Tests like a sexual history, which explore the offenders' entire sexual history from birth to present, are used to find patterns and motives behind offenders' actions. Treatment providers can determine if there have been more victims that officially disclosed, and see if the offender has used similar methods on their victims throughout their life. In many instances, these tests can determine if the offender developed excessive fantasies in various areas that have exacerbated over time. Treatment for offenders means being entirely truthful and honest about their sexual activities and problems in the past, present, and future. Many sexual offenders stay in treatment programs for the duration of their sentence, although the average time in a treatment program is twenty-four months. Although while in treatment most offenders have to pay a fee for their polygraph examinations, there are usually scales in which offenders can be evaluated to determine the fee on a case-by-case basis. Many offenders do not pay the full amount for a polygraph, but rather a smaller amount allotted based on their income and various other factors (Matte, 1996).

Many treatment providers follow models that help them to better understand the offenders and the best way to treat them. The "Cycle of Abuse" model shows that an offender's patterns usually begin with daily stressors which increase throughout time. These stressors in combination with social and family isolation can cause the offender to require a release for these issues. The offender will begin to fantasize and masturbate to different situations, excusing themselves in thinking that they are relieving their stressors but not realizing that they are adding to their problems. This will lead to increased fantasies and excitement which they will be unable to fulfill purely through masturbation as the stressors increase. They will them begin to offend as a payoff of orgasm, leading to fear of detection and some guilt for their offenses. They then begin to rationalize their offense patterns and eventually assure themselves or others that this pattern will never occur again and continue a life of normalcy. Unfortunately for most offenders, they will continue with the cycle of abuse unless they can be treated for their beliefs or simply incarcerated to end the cycle even for a short amount of time. The patterns involve "cycle behaviors, thinking errors, victim impact, intervention techniques, offender victimization, family dysfunction, self-concept, communication, and self-concept skills". While most offender treatment is in group settings, this allows group members to be more open and honest with one another and to learn from the experiences of others. The open nature also makes offenders believe that they are helping in the treatment of others, and helps them flourish in their rehabilitation (Bays & Freeman-Longo, 1989).

The most crucial approach for sex offender treatment and management comes from the Containment Model which emphasizes the need for different agencies to come together in an effort to monitor sexual offenders. Sexual offenders have spent years being dishonest to many people; making it difficult to believe that they will become truthful once they are released on probation conditions. Sexual offenders manipulate authority, victims, family, and friends. Their ability to fabricate their existence comes at a price to the community; who must wait for the offender to strike next before being able to take action. The Containment Model is a five step approach for the management of sexual offenders. The first step of the model ascertains that the program must have "a clearly articulated community safety/victim orientation mission" which works to prevent harm for past and current victims. This method is the foundation, making the safety of the community as a top priority for supervision. Next comes the "coordinated activity of multiple well-informed, multi-disciplinary, intra- and interagency collaborative teams" who develop units to handle sex crimes in a multitude of ways. Various agencies must come together to move cases through the criminal justice system with the goal of assisting victims and holding the offender accountable for their actions. These can include prosecutors, hospital workers, therapists, probation officers, law enforcement agents, and interaction between the different systems towards common goals. Collaboration between agencies assists not only the community and the victim, but also helps the offender in getting the personalized assistance they require. The next step, "the use of a variety of containment strategies, especially a containment team consisting of the supervising officer, treatment provider, and post-conviction polygraph examiner" requires that all these agents work together to manage the offender in the community. The three member team (polygraph examiner, probation officer, and treatment provider) discovers the deviant behaviors of the offender and creates strategies to reduce their risk in the community and reduce recidivism. The fourth step, "consistent, informed public policies" public officials establish policies through research on risk management to allow treatment providers and probation agents to respond quickly to conditions of release. The final step, "resources dedicated to state and local quality control efforts" requires that agencies set up practices to ensure proper techniques in the field. Through quality control, the practices of an agency can be evaluated thoroughly and monitored to ensure that ethics and standard practices are being utilized. By using the polygraph examination as a containment tool, agencies can develop plans to help treat offenders based on their examinations as well as determine the risk level of the community during the release of each individual offender. Without the polygraph to instill fear in the offender, many offenders will not be open and honest during their treatment which will hinder their ability to be properly monitored in the community (Colorado Department of Public Safety, 2000).

For probation purposes, the polygraph is an incredible tool which can determine if offenders are committing new offenses and following their guidelines for release. This usually includes not using substances such as alcohol and drugs, having no contact with minors unless supervised by approved persons, completing their treatment requirements, and following specific rules tailored to each offender. For example, offenders who are on probation for pornography are regulated on the computer and internet, with many being unable to use either. Probationers are usually required to visit their probation officers regularly, submit to drug testing, and allow for random home visits to determine if the offender is complying with probation standards. With the help of treatment providers and the continued interaction of the polygraph examiner, probation can effectively monitor the multitude of offenders that are released into the population each and every day.

Types of PSCOT Examinations

There are three main types of PSCOT examinations that can be used. These include the sexual history examination, specific or instant offense examination, and the maintenance or monitoring examination. All three of these tests can be utilized for offenders entering treatment programs and probation settings. From their release from prison until their completion of treatment, polygraph tests can be a constant tool used to assist offenders in becoming stable members of any community.

A sexual history examination is used primarily as a treatment tool. This is due to the fact that in a sexual history, the offender is verifying the information that they have given to treatment providers to assist in their rehabilitation (English et. al, 2003). It is important for treatment providers to ascertain the correct information because they must be open, honest, and forthcoming about any and all past victims, offenses, and sexual information. Withholding information to treatment providers hinders rehabilitation for offenders and makes it difficult for offenders to successfully complete their treatment requirements. Once the offender can admit their past indiscretions and break their pattern of denial, they can be better suited for rehabilitation and more successfully complete their treatment requirements. Although the test has been questioned legally since it demands that offenders reveal their entire sexual history including past victims which have never been reported and which they have not been convicted for, the court system has allowed their use. The courts general ruling is that the offender has been given a choice to either complete their prison sentence or submit to polygraph testing as a condition of their release. If they desire to be released into society, then they have made the choice to submit to polygraph testing as a condition of such. Through such examinations, we can also determine undisclosed offenses and victims and discover a more accurate number for this unique population (Matte, 1996).

Sexual history examinations determine many different aspects of an offenders' lifestyle and behaviors. Offenders are asked to disclose the age, gender, and method in which they assaulted their victims. These can include non-physical victims (voyeurism, internet and/or computer, mail, stealing items, sexual phone calls, exhibitionism) and physical victims. In many physical victim disclosures, the offender includes the method of assault including coercion (asking, verbal coercion, playing games, giving gifts, etc.) and actual physical acts. In many cases, sexual history examination booklets are long and tedious; documenting each and every assault victim that the offender has ever encountered and showing every activity that they have been involved with or fantasized about. These examinations verify the truth and accuracy of the offender so that they will openly disclose this information, which are very tenuous subjects, to their treatment providers and assist in their rehabilitation (English, et al., 2000). If an offender has not provided the correct information, it will be verified through their interview with the polygraph examiner and then their information will be put through the test with the polygraph. Offenders must pass their sexual history polygraph to progress in their treatment through the full disclosure of their past information.

The maintenance examination is used as a verification tool to determine if an offender is complying with their terms of release created by their probationer and treatment providers. These examinations are usually administered every six months on average. These examinations look for behavior that could potentially be dangerous to the offender's rehabilitation. These can include alcohol use, drug use, multiple sex partners, problems in their relationships, masturbation habits, nudity, fantasies, involvement with criminals and the police, and other deviant sexual behaviors. In many ways, this examination monitors their sexual activities and behaviors such as these fantasies and exposures to nudity. The high risk behaviors that many sexual offenders engage in, such as watching pornography or soliciting strangers for sex, are often mandatorily reported in these examinations as a condition of probation and treatment. Not only are these agencies trying to determine if an offender is engaging in any of these high risk behaviors, but they are also determining if they are complying with the standards and terms of their release agreements. Offenders spend time with probation and therapists to set a plan for their release that they must comply with and these guidelines they must follow without question (Matte, 1996). The maintenance examination asks them if they are hiding things from these agencies, writing in their treatment journals, reporting all activities to their probation and treatment providers, and asks if they are being honest and truthful. These examinations must also be tailored to the offense that the offender has committed, asking child molesters questions about contact with minors and asking rapists about questions of force and predatory activities. Not all sexual offenders are the same, and thus this examination must treat them as such.

A monitoring examination is very similar to the maintenance examination but it deals primarily with issues about undetected sexual crimes in which an offender may have committed since the commission of their release. These tests are used for the safety of the community to see if the offender is violating sexually with new criminal activities during their release (Philips, 2004). While some agencies use both maintenance and monitoring examinations, some use only the maintenance based on their offender viewpoints. Some agencies believe that monitoring examinations deter offenders from being open and honest due to fear of detection. They will use only maintenance examinations so the offender is more likely to make admissions that will assist in their treatment and rehabilitation. Depending on the outlook of the agency and the requirements of the conditions of the offender's release, either examinations or just one examination will be utilized.

The last major type of polygraph examination is the specific or instant offense examination which deals with the offender's denial about some or all details of the crime of conviction. In this type of examination, the polygraph examiner must gather information about the offense and formulate questions based on the details of the offense. These can include questions about force (physical or verbal), details of the crime, things said to the victim, or any aspect of the offense that the offender believes is untrue. The offender's version of the crime is then compared to the victim's version of the crime to see where the differences occur. Specific issue examinations can also be used to address concerns that probation officers have during the offender's release. These tests will deal with suspicions that the supervising agents have concerning the offender when they arise. Examiners can also use these tests when an offender comes up deceptive on a different test. The examiner can test the offender on the specific issue that they were deceptive on in previous testing (English et. al, 2003).

Since these examinations are used for both treatment and probation purposes, it is essential that the polygraph examiner collaborates with both to ensure a proper testing of each individual offender. Considering the polygraph examiner does not know the offender like the therapist and probation officer, they are not able to tailor their questions specifically to the subjects' offense patterns and high risk behaviors. Through determining the probation and treatment conditions and consulting with these agents to construct relevant question topics, a proper testing of each offender can be made.

Legal Issues and PSCOT Polygraphs

Polygraph examinations have been questioned in multiple legal contexts since their inception. Questions have been raised about the admissibility as well as various other legal issues such as self incrimination, criminal immunity, and privacy invasions. Trying to determine how to manage sexual offenders has left states with no definitive answers or solutions. States have argued methods such as civil commitment, registration and community notification, and mandatory sentencing guidelines. Many different court cases have set the standard for sex offender treatment and probation standards; including the right for this population to have mandatory polygraph examinations as a condition of their release or supervision. The legality of such has been argued in court, but strives have been made for the institution of polygraph to continue in probation and therapy practices.

Several cases have set the stage for post-conviction sex offender polygraph testing. In the first case, U.S. v. York (2004), the reliability of the polygraph was called into question by a sex offender who was required during release to submit to testing. He deemed the instrument unreliable and used the verdict from U.S. v. Scheffer which showed the polygraph has not been deemed reliable in consensus by the general scientific community. This case was resolved by the court's ability to deem the polygraph a "useful tool for policing defendant's compliance within conditions of supervised release". They also believed that if offenders' believed they would be polygraphed, they would be more open and honest (Blackstone, 2008).

In the case of Kansas v. Lumley (1999), a defendant violated his probation by showing deception to contact with minors on his polygraph examination. He appealed the sentence and the judge decided that the sentence was acceptable. The judge believed that without the polygraph, it would be difficult to maintain the population of sexual offenders within the community (WL 218704, 1999).

The decision to allow polygraphs as a continued practice was further enforced in the case of U.S. v. Lee (2003). In this case, the defendant appealed the conditions which included the use of the polygraph in his maintenance and monitoring while on parole. The judge found that the polygraph was conducive to the defendant's rehabilitation and protecting the community. In another case, Jones v. Virginia (2003) Jones probation was remanded when he refused to cooperate with the polygraph examiner during his testing. When he was given the polygraph, he was able to answer the questions that the examiner had but then refused to answer questions pertaining to a child abduction that had occurred during his release. When he asked for a lawyer to be present, he was not granted one. He was returned to prison and the judge told him that unless he was in custody, the right to an attorney was not applicable.

In the case of U.S. v. Dotson (2003), Dodson also did not agree with having polygraph testing as a term of his release. The judge said that the polygraph is not used to gather evidence against Dodson when he is released from prison that could potentially put him back in prison, but rather it is a condition of his release that he must follow. The judge believed that such testing would be beneficial to Dodson during his release and therefore denied Dodson's request not to submit to testing. The same ruling was made in the case of U.S. v. Wilson (1998) when the judge also affirmed that polygraph testing was useful in monitoring offenders within the community.

Other questions of sex offender polygraph testing arise from Constitutional rights that the offender must waive for testing. For sexual offenders to have periodic polygraph testing as a condition of their supervision, they must waive their 5th amendment right. The 5th Amendment protects the right to self-incrimination through statements made that could potentially convict someone. Offenders must waive their right and disclose fully past and current victims which leaves them open to be prosecuted for the offense. In Marcum v. State (1998), the court decided that "a polygraph examination administered as part of a court-ordered condition of probation is not considered an in-custody interrogation for purposes of triggering the need to give a Miranda warning" and therefore the offender's admissions are admissible (English et. al, 2000). Considering an interview with a polygraph examiner does not constitute custody, Miranda rights are not necessary and the offender does not have the protective rights of the 5th Amendment when they openly disclose information. This information must not be coerced or forced from the offender, and it is admissible in court. Another case, Minnesota v. Murphy (1983) it also found that interviewing sex offenders during supervision is not a violation of their 5th Amendment right.

Policy makers have tried to put different measures into place when it comes to legal rights of sex offenders in making admissions. In some jurisdictions, they allow limited or complete immunity for sexual offenders in making admissions about previous crimes that they have committed. These immunity agreements are usually only in effect as long as the offender does not reoffend. Any re-offense by the sex offender breaks the immunity agreement and they can be prosecuted for any new offense committed. The reason that policy makers have created immunity is that they believe that disclosing prior victims is conducive to treatment and offender rehabilitation. By giving offenders the right to disclose their prior victims and criminal activities without the fear of being convicted of these crimes, they are able to be open in their treatment which assists them in completing their supervision requirements. Other arguments for immunity state that even if the polygraph reveals previous victims and crimes, there may not be evidence to prosecute the offender for the crime. Many policy makers also believe that many admissions during testing are coerced and therefore are inadmissible anyways. While some allow immunity while others do not, policy makers have generally agreed that these admissions are not to be prosecuted. Many believe the polygraph is a tool for therapy and rehabilitation, and should be used as such (English et. al, 2000).

Although many places submit to limited immunity or full immunity agreements, many prosecutors have an agreement for individual case review. While they understand that polygraph is a therapy tool, they believe that limited immunity agreements hinder prosecution for serious criminal offenses and do not believe this is conducive to the safety of the public. In these cases, the prosecution makes an agreement with the probation office to use admissions for prosecution on a case-by-case basis. This allows them to further investigate any admission about a serious sexual crime if they choose to do so. They may then prosecute the offender based on the investigation made into the allegations (English et. al, 2000).

Most polygraph agencies submit to a policy of "don't ask, don't tell". These examiners tell the offender before the examination begins that if they disclose information about the victim's name, they are mandated to report it. They tell the offender to omit the name of the victim, but they are allowed to give details about the incident without question. The offender must leave out identifying information that could require the examiner to report the past incident. Instead of using the victim's name, they may use numbers for their victims to identify the incident. By going so, this will lower the instances of prosecution for past sex crimes during admissions in polygraph testing. Using this method can be useful for treatment purposes, but it must also be determined if the victim could be someone that the offender has access to or is currently having contact with, such as a family member or acquaintance. Treatment providers should take the information given with these admissions and ensure that they have not missed critical victims that the offender may currently be having contact with. This is one of the biggest problems with this method; although the offender may disclose these victims as being past victims, they may in fact be persons that they currently have contact with and are still offending against. Examiners must be perceptive and record all information about victims, even though the offender is not to give the victim's name. Some believe that the problem in the "don't ask, don't tell" lies in the fact that agencies encourage full disclosure of information, but then we tell the offenders that they are not allowed to disclose the crucial information. Without disclosing the information of the victims, it does not encourage offenders to identify their victims and take responsibility for their crimes. It also does not allow past victims to receive the assistance they need and for their families to get closure for the events. Regardless of the immunity or non-disclosure of certain aspects of past crimes, examiners are required to report any instances of child abuse although past incidences reported rarely amounts in prosecution for the offender (English et. al, 2000).

Privacy is a major consideration with post-conviction sex offender testing. Offenders are required to waive their right to self-incrimination and fully disclose their innermost thoughts and most heinous activities. Everything from the offenders private masturbatory habits to their fantasies are disclosed for treatment and probation supervision purposes. In lieu of privacy, these agencies believe that it is therapeutic to disclose information fully, regardless of the expectation to waive privacy. By withholding information from probation officers and treatment providers, the offender remains in control of their rehabilitation, and have therefore hindered their own treatment. Sexual offenders are by nature secretive and have led a life of deception in every aspect; even leaving those closest to them in the dark about their activities (English et. al, 2000). "Offending patterns are thought to be ingrained, compulsive, and lifelong" which make it difficult to treat an offender unless they are able to break these patterns of secrecy and share even the most shameful acts they have committed (Marshall, Laws, & Barbaree, 1990).

Many different cases have illustrated the use of polygraph testing and its immense support in the court system for sexual offenders. The belief that the polygraph is not only useful in the detection of deception, but is also necessary to illicit productive members of society through the innate fear of detection has been the reason that the polygraph has progressed judicially thus far. Although the polygraph has not been accepted by the community at large, and many court systems have shown that the polygraph is not a factor in determining guilt or innocence, it has been a useful tool for probation officers and therapy providers all across the country.