Ninth Circuit Orders New Sentence in Case of Compelled Confession During Sex Offender Treatment – U.S. v. Bahr
One of the most basic constitutional rights invoked in criminal law is the right not to be compelled to testify against oneself. The Fifth Amendment to the U.S. Constitution says defendants in criminal cases have the right to “remain silent”; that’s the basis for the Miranda warning police officers read on television. (And, if they’re doing it right, also in real life.) But that right doesn’t just mean the right to stubbornly refuse to answer; it also means the right not to have testimony compelled through other means. In United States v. Bahr, the Ninth U.S. Circuit Court of Appeals found that testimony compelled during sex offender treatment violated the rights of Richard Roosevelt Bahr, Jr. Bahr was required to complete sex offender treatment after an arrest for rape in Oregon. During the course of the treatment, he admitted to sexual contact with minors, giving rise to a new conviction and a 20-year prison sentence.
Bahr’s rape conviction came in 2003. After he was released into supervision, he was required to complete sex offender treatment, including a polygraph test requiring him to disclose his entire sexual history. He was required to follow all of the program’s rules as part of his supervised release. During the polygraph, he revealed that he’d had sex with six minors when he himself was a minor, and seven minors after becoming an adult. In a workbook for the program, Bahr said he had sexually abused 18 children. Bahr was later caught in possession of child pornography. As part of the pre-sentencing report, the prosecutors included the admissions made in the sex offender treatment program. Bahr objected to this unsuccessfully. He was sentenced to two 20-year prison sentences, to run concurrently.
Bahr appealed the sentence, and the Ninth U.S. Circuit Court of Appeals reversed. The treatment disclosures were compulsory, the court said. Thus, using them at sentencing violated Bahr’s right not to incriminate himself. The U.S. Supreme Court has ruled that the Fifth Amendment right against self-incrimination includes the sentencing phase of trials, as well as separate criminal trials. Bahr didn’t need to invoke his Fifth Amendment rights, the court said; the right should be self-executing. Making the treatment mandatory created a threat of future prosecution. And Bahr was required to complete the program, the court said; because it was part of his supervised release, refusing to answer questions could have landed him back in prison. Thus, his confessions were compelled and inadmissible and the court should not have considered them. The Ninth Circuit vacated the sentence and remanded, with instructions for the district court to consider whether Bahr’s testimony was admissible and whether to alter the pre-sentencing report.
This is an issue that may arise again and again, as defendants charged with serious sex crimes are released and required to complete sex offender classes. Bahr, like anyone who is subject to post-release supervision, truly had limited rights when he took the classes; failure to complete the classes, or lack of cooperation during them, could have sent him back to prison. That’s why I believe the Ninth Circuit was right to make the “testimony” from Bahr’s class inadmissible. Indeed, making sex offender treatment admissible evidence might stymie the psychological treatment that is the ostensible goal of these classes.
Seltzer Law, P.A., focuses its practice on representing people accused of serious sex crimes and online crimes. Lead attorney David Seltzer is an experienced former cyber crime prosecutor for the Miami-Dade State’s Attorney’s office. To learn more or set up a free, confidential case evaluation, send us an email today or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).
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