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Court Upholds Kansas Sex Offender Treatment Protocol

The plaintiff, who pleaded nolo contendere to sexual exploitation of a child, was assigned to a Sexual Abuse Treatment Program, which requires that he sign an "Admission of Responsibility" form, listing all past behavior, charged or uncharged, that might have been a sex offense. It also requires submission to videotaped polygraph and penile plethysmograph examinations. The plaintiff refused to complete the form and hence was not allowed to participate in the program; prison officials therefore reduced his incentive level (privileges).

The court denies a preliminary injunction because the plaintiff is unlikely to succeed on the merits. He has no Fifth Amendment self-incrimination claim, since the choice to provide the information remains his; the change in prison privilege level is not sufficient compulsion to violate the Fifth.

The court rejects the plaintiff's claim that his religious beliefs forbid him to look at the kind of pornographic material that he would be shown during the plethysmograph examination. The procedure passes muster under the Turner standard notwithstanding limited authority indicating that the device is unreliable. Letting the plaintiff escape this procedure could cause resentment and discontent among other participants and lead to other prisoners asking for the privileges and benefits of rehabilitative programs but not participating in their activities.

There is no Fourteenth Amendment substantive due process right and no Fourth Amendment right to refuse the plethysmograph and polygraph examinations, since participation is voluntary (notwithstanding the loss of privileges). Even if it was compulsory, prison officials' legitimate objectives would prevail. See: Searcy v. Simmons, 68 F.Supp.2d 1197 (D.Kan. 1999).

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Related legal case

Searcy v. Simmons