The required sexual history is incriminating for Fifth Amendment purposes. (The court does not reach the question whether the written "admission of responsibility" for the current offense invokes Fifth Amendment protection.) The sex offender program operates to compel the disclosure of such incriminating testimony. The court distinguishes the clemency hearings at issue in Ohio Adult Parole Authority v. Woodard on the ground that the Court found them to be voluntary. This case would be similar to Woodard if the consequences of non-cooperation were limited to effects on the discretionary grant of parole. However, the adverse consequences to classification, housing and privileges are sufficient to constitute Fifth Amendment compulsion. (The Kansas Supreme Court has reached the same conclusion with respect to restrictions on earning good time. Bankes v. Simmons, 963 P.2d 412 (1998).) The court rejects the defendants' argument that if no liberty interest is denied, there is no compulsion.
The state may require the disclosures at issue if it extends immunity against their use in subsequent criminal proceedings.
The use of penile plethysmography to measure response when prisoners are played audio recordings of sexual scenes does not violate the Fourth Amendment. Prisoners have no legitimate expectations of privacy in their cells. At 1161: "A search of a prisoner's body, however, is a qualitatively different matter.... A prisoner retains a privacy interest in the integrity of his own person." The collection of revealing private physiological data has been found to be an invasion of privacy interests. However, the reasonableness of this intrusion is measured by the Turner standard. The practice has a valid, rational connection to a rehabilitative program; its intrusiveness is mitigated by the fact that staff do not touch or observe the inmate during the procedure and do not videotape it. The fact that this procedure has garnered only limited acceptance by the courts, that its usefulness is diminished by the involuntariness of the program, and that staff's training and expertise are marginal are outweighed by the deference owed defendants.
The consequences to the plaintiff of noncooperation with the procedure render it involuntary and give the plaintiff standing to challenge it. See: Lile v. McKune, 24 F.Supp.2d 1152 (D.Kan. 1998).
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Related legal case
Lile v. McKune
|Cite||24 F.Supp.2d 1152 (D.Kan. 1998)|