Sex offender challenges requirement to confess crime

Frank Johnson, 29, is serving 45 extra days at Lino Lakes prison because he refused to admit his crime as part of a sex treatment program. Johnson resisted taking part in the program because he was still appealing his conviction for third-degree criminal sexual assault. As a consequence he must serve an extra six weeks in prison that he would have otherwise been out on supervised release. The total time he's under supervision by Corrections doesn't change; he just spends more of it locked up. Johnson's attorney, Brad Colbert, says requiring prisoners to provide full disclosure of their crimes or face more time incarcerated, puts them in a catch-22.

"Before they even let you into treatment you have to acknowledge that you admit your offense. So if you admit your offense and later appeal, they will use that against you, which I think effectively destroys your right to appeal," says Colbert. "So they're forcing them to choose between their Fifth Amendment right and their right to appeal."

The Fifth Amendment privilege against self-incrimination means the government cannot compel U.S. citizens to reveal information about them that could lead to jail. Defendants have raised that privilege in connection with sex offender treatment in the past but lost.

"(A)n offender who's being directed to participate in sex offender treatment programming is not being compelled to talk about his crime rather he is being asked to talk about his crime..."

Nevertheless, in 2002, then U.S. Supreme Court Justice Sandra Day O'Connor raised the issue that such treatment could violate the 5th Amendment. The Minnesota Court of Appeals last spring found O'Connor's opinion supported Frank Johnson's case. Johnson argues that the state is forcing him to admit to a crime or face six more weeks locked up.

Brent Wartner, an attorney representing the Minnesota Department of Corrections, says the state is not forcing Johnson to admit his crime. Sex offenders have the choice of whether to acknowledge wrongdoing and participate in treatment. As a result, the state isn't requiring Johnson to give up any rights; he says it's simply offering him a choice.

"It's been our position all along that an offender who's being directed to participate in sex offender treatment programming is not being compelled to talk about his crime rather he is being asked to talk about his crime and if he chooses not to, he isn't eligible for an early release," says Wartner.

Many prison programs and therapists maintain that it's absolutely critical to a sex offender's rehabilitation that he or she talk not only about their pattern of their behavior but also detail their crimes.

But forensic psychiatrist Michael Farnsworth says there is no science behind that belief. Farnsworth helped design and directed the state sex offender programs at Moose Lake and the security hospital at St. Peter. He estimates that he's examined at least 2,000 sex offenders in the past 20 years. He says in his experience it's not necessary that sex offenders talk about specific crimes. He says it is necessary that they admit they are sex offenders and talk about what triggers their criminal sexual conduct.

"Once they've determined what their pattern of behavior is they can then utilize that pattern to put into a relapse prevention treatment plan. So if they know they like young girls and they like to find them at certain places, using those as guideposts they can then develop alternative strategies from going to the bad behavior," Farnsworth says.

The U.S. Supreme Court ruling that gave rise to this challenge mentions several studies on sex offenders. The research from 1991 shows sex offenders have a lower rate of repeating their crimes if they undergo treatment. Nevertheless, those studies don't break down the data on whether a person who details a particular sex offense has a better outcome than those who admit they are sex offenders and their behavior patterns. The Minnesota Supreme Court will hear arguments on Johnson's case sometime this session.