National District Attorneys Association



Volume 16, Number 5, 2003


Sexual Abuse Treatment Programs: Choices and Consequences

Paul Meyers1

Although the statistics are improving, sexual assault continues to be a major problem in the United States, with an estimated 247,730 sexual assaults reported in 2002.2 The majority of forcible offenses were committed against juveniles, defined as persons under the age of 18.'3 In fact, it is reported that in 2000, the sexual assault victimization rate for youths between the ages of 12 to 17 was 2.3 times higher than for adults.4 Perhaps most alarming, sex offenders are more likely than any other offender to be rearrested for the same or similar crime when they reenter society.5

Faced with this problem, courts recognize that the states have a necessary interest in rehabilitating convicted sex offenders. This is done through Sexual Abuse Treatment Programs (SATPs), which make convicts take responsibility for their actions and manage their violent impulses. Although success rates differ depending on how success is defined and how the programs are implemented, they have shown some effectiveness in preventing later offenses.6

Therapists and correctional officers widely agree that the most important component of SATPs is the requirement that convicts accept responsibility for their past offenses, including ones for which they have never been charged or convicted.7 To fulfill this requirement, many states require SATP participants to complete an "Admission of Responsibility Form" for the offenses of which they have been convicted and a "Sexual History Form" detailing all past sexual activities. This is done without an offer of immunity. These two requirements have come to the attention of the Supreme Court, as asserted violations of the participant's 5th Amendment right against self-incrimination. This article summarizes the Court's opinion.

The Supreme Court offers guidance and upholds Kansas' SATP

In June 2002, the Supreme Court approved Kansas' SATP in McKune v. Lile.8 Under the Kansas program, prison officials can order inmates convicted of sexual offenses to participate in a SATP, which requires an "Admission of Responsibility Form" and a "Sexual History Form." Inmates who refuse or decline to participate face an automatic reduction of prison privileges.9 In Lile's case, the reductions affected visitation rights, earnings, the ability to send money home, work opportunities, canteen expenditures and access to personal television. He also faced being transferred to a potentially more dangerous maximum-security prison.10 Also, like many other state systems, Kansas did not offer immunity to Lile and retained the right to use the information obtained through the forms in future criminal proceedings.11 In ultimately upholding the Kansas plan, the Court reiterated the point that, "It is well settled that the government need not make the exercise of the 5th Amendment privilege cost free."12 The Supreme Court concentrated on three areas of analysis with regard to the constitutionality of SATPs.

1) The SATP in Kansas is supported by the legitimate penological objective of rehabilitation.

The Court ruled that this prong is satisfied in Kansas because their SATP helps reduce recidivism and rehabilitate participants by (1) forcing them to admit to and accept responsibility for past criminal sexual activity; and (2) helping them to develop relapse prevention skills.13

2) The fact that Kansas does not offer immunity or privilege in response to statements made by participants does not render the SATP invalid under the 5th Amendment.

The Supreme Court acknowledged that a state's decision to deny immunity serves two important state interests: First, it reinforces the wrongfulness of the participant's past criminal acts. Second, it upholds the state's interest in deterrence by maintaining the option to prosecute a dangerous offender. It is noted in the opinion, however, that no evidence was found to suggest that a person had been prosecuted based on information obtained through the Kansas SATP.14

3) The SATP, and consequences that follow for nonparticipation, do not, under the Kansas plan, combine to create compulsion, thereby infringing upon the participant's 5th Amendment right not to incriminate oneself.

Although the Supreme Court has not formulated a specific test for compelled self-incrimination, it has provided lower courts with a "useful instruction."15 In borrowing language from Due Process violations within the prison context, the plurality of the Supreme Court held the following: There is compulsion only if consequences constitute "atypical and significant hardships in relation to the ordinary incidents of prison life," so much so that no one could sensibly deny that they rise to a level of unconstitutional compulsion." In siding with the plurality, Justice O'Connor stated that the compulsion test should be somewhat narrower than the Due Process test, but refused to offer any more guidance.17 In discussing the consequences analysis, the Court focused on both the prison context in which the consequences had to be weighed, and on the compulsion aspect itself.

Prison Context

The Supreme Court was quick to note that the prison context must be taken into consideration when weighing the respondent's constitutional claim. "A broad range of choices that might infringe constitutional rights in free society fall within the expected confinement of those lawfully convicted."18 The limitation on prisoners' rights stems from the need to grant the necessary authority to administer prisons. An essential tool of prison officials is the authority to offer inmates various incentives to behave. Thus, "the constitution affords them wide latitude to give or revoke these incentives as they see fit."19 Furthermore, due to the limited space in prisons, inmates who choose not to participate in SATPs often must be moved from the facilities where the programs are offered to make room for other inmates who are willing to participate.20

Compulsion and Discretion

Although many restrictions may make a prison stay more unpleasant, few will actually rise to the level of compelling self-incrimination. This is true because, ultimately, the prison is responsible for caring for the prisoner's needs. For example, if all of a prisoner's money is taken away as punishment, his basic needs will still be met. With this in mind, the Supreme Court has offered examples of sanctions that would rise to the level of compulsion. Both physical torture and completely revoking an inmate's ability to see family, attorney, or clergy would rise to this level.21 Where immunity is not offered for the disclosure of sexual history, consequences for nonparticipation in SATPs (where parole and "good time" credits are affected) have been held to rise to the level of compulsion.22 However, not even denying parole, or extending prison terms through loss of credits, necessarily equates to compulsion. Lower courts have held that as long as prisoners are subject to state prison administration regulations that spell out how good time or work credits will be dispersed or stripped, and those regulations are followed, the state will have great latitude in awarding or stripping those credits.23 This is true because the Constitution itself does not guarantee good time credits; neither do states, as long as they use language such as "may earn" in their prison regulations.24 In the end, states are only withholding a benefit that they are under no obligation to give. Under the same rationale, other courts have held that, since prisoners have no right to parole, states will be given wide latitude to offer this privilege as they see fit.25

There are limits to prison administrators' discretion, however. It has been held unconstitutional for prison administrators to revoke a prisoner's probation because he refuses to participate in a SATP (where he would be forced to admit to a crime without immunity), while a direct appeal is pending." In addition, all courts adhere to the premise that "the privilege against self-incrimination does not terminate at the jailhouse door."27 Where the retested self-incrimination pertains to the crime for which the prisoner is convicted, the privilege extends as long as the prisoner has a real chance of further incrimination, e.g., where an appeal is pending, or before the time period for an appeal of right or a plea withdrawal has expired. It is also true where the defendant is in the process of moving to modify his sentence and can show a reasonable chance of success.28


SATPs are a necessary tool in the rehabilitation of violent sex offenders. However, to be effective, SATPs must force sex offenders to confront their past behavior and admit wrongdoing. Through careful administration regulations and timing of programs, prison administrators should be able to set up effective SATPs without infringing on participants' 5th Amendment rights. In the end, such efforts will benefit both the inmates and society. Inmates will learn how to repress criminal conduct, in turn decreasing the likelihood that they will commit a similar offense when they return to the community.


1 Law Clerk, APRI's National Center for Prosecution of Child Abuse.
2 U.S. Dept. of Justice, Bureau of Justice Statistics, National Crime Victimization Survey (August 2003),
3 University of New Hampshire Crimes Against Children Research Center, Fact Sheet on Sexual Assault,
4 Id.
5 U.S. Dept. of Justice, Bureau of Statistics, Recidivism of Prisoners Released, P. 6 (1997),
6 U.S. Dept. of Justice, Office of Justice Programs, Center for Sex Offender Management, Recidivism of Sex Offenders (2001)
7 Id.
8 McKune v. Lile, 122 S.Ct. 2017 (2002).
9 Id. at 2023.
10 Id.
11 Id.
12 Id. at 2029.
13 Id. at 2025.
14 McKune, 122 S.Ct at 2025.
15 Id. at 2029.
16 Id. t 2027.
17 Id. at 2023.
18 Id. at 2026.
19 Id. at 2028.
20 McKune, 122 S.Ct. at 2026.
21 Id. at 2027.
22 Bender v. New Jersey Dept. of Corrections, 812 A.2d. 1154, 1161 (2003).
23 Searcy v. Simmons, 299 F.3d. 1220, 1225 (Kan. 2002). See also Ainsworth v. Stanley, 317 F.3d 1 (N.H.2002).
24 Searcy at 1226.
25 See Baxter v. Palmigiano, 425 U.S. 308 (1976).
26 State ex. rel. Tate v. Schwarz, 654 N.W.2d 438 (Wis. 2002).
27 Tate at 444.
28 Tate at 444.