A probation requirement that requires a defendant whose case is still under appeal to attend an offender treatment program, which requires he admit to the sex offenses underlying the conviction he is appealing is patently unconstitutional.  Additionally, such an offender treatment program which requires participants to disclose information about all past behavior is unconstitutional absent a granting of immunity by the Government. 

While there appears to be no California cases directly on point, the principle is grounded in Federal Constitutional Law.  In Newell v. Souser, (9th Cir. 1996) 79 F. 3d 115, 117, fn. 4, the federal appeals court for this area stated, “There is no Ninth Circuit authority precisely on point; however, ‘in the absence of binding precedent, a court should look to whatever decisional law is available to ascertain whether the law is clearly established..’ Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985).”  See also Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1977), “. . .We note that precedent directly on point is not necessary to demonstrate a clearly established right.” 

Such decisional law ban be found in other jurisdictions: On September 5, 2000, the U.S. Court of Appeals for the Tenth Circuit affirmed a federal court decision, which held that a treatment program which required that treatment participants disclose information about past behavior violated the Fifth Amendment on the basis that information obtained during the course of treatment had limited confidentiality and could be used in criminal proceedings.  Lile vs. McKune, (D. Kan. 1998) 24 F.Supp. 2d 1152.  (Affirmed by 10th Cir. In unpublished decision.) 

Also basing its decision on the federal constitution, a Minnesota appeals court found that the trial court violated a sex offender’s 5th Amendment privilege against self-incrimination when it revoked his probation after he refused to admit to the sex offenses underlying the conviction he is appealing.  Minnesota v. Kaquatosh, 600 N.W. 2d 153 (Minn. Ct. App. 1999). 

Kaquatosh’s attorney advised him to assert his 5th Amendment privilege at his intake appointment for sex offender treatment.  The privilege against self-incrimination applies until the time for appeal has expired, or until the conviction has been affirmed on appeal.  See U.S. v. Duchi, 944 F.2d 391 (8th Cir. 1991).  Revocation of probation is a substantial penalty “that cannot be imposed. . .because a witness elects to exercise his Fifth Amendment privilege not to give incriminating testimony against himself.”  See Minnesota ex rel Morrow v. Lafleur, 590 N.W. 2d 787 (Minn. Sup.Ct. 1990).  Here, by directing Kaquatosh to admit to the elements of his underlying offense while his appeal was pending, the trial court essentially nullified his right to appeal.  This is precisely the situation proscribed by the United States Supreme Court in Minnesota v. Murphy, 465 U.S. 420 (1984)(holding when an individual asserts the privilege, he may not be required to answer a question if there is some rational basis for believing that it will incriminate him).   Kaquatosh, 600 N.W. 2d 153. 

These principles come from a long line of United States Supreme Court precedent.  In Doe v. U.S., 487 U.S. 201, 213, 108 Ct. 2341, 101 L.Ed 2d 184 (1988), the Court held that information about a defendants’s thought process falls within the scope of this Fifth Amendment right to be “spare[d] from having to reveal, directly or indirectly, his knowledge of facts. . .or from having to share his thoughts and beliefs with the Government.”  Quoting Doe v. U.S., the Ninth Circuit Court of Appeals, in U.S. v. Watt, 910 F.2d 587, 591, 593 (9th Cir. 1990), stated, “Penalizing a defendant for failing to provide evidence against himself or to make incriminating statements violates his constitutionally protected rights.” 

In Kastigar v. U.S., 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed 2d 212 (1972), the U.S. Supreme Court held, “[The privilege against compulsory self-incrimination] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonable believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” [Citing: Miranda v. Arizona, 384 U.S. 436, 443-444, 86 S.Ct. 1602, 1611-1612, 16 L.Ed 2d 694 (1966); Boyd v. U.S., 116 U.S. 616, 635, 6 S.Ct. 524, 534, 29 L.Ed 746 (1886); Huffman v. U.S., 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed 1118 (1951); Blaw v. U.S., 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed 170 (1950); Mason v. U.S., 224 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed 1198 (1917; (other cases omitted).] Kastigar at 92 S.Ct. 1656.  The Ninth Circuit cites Kastigar in the same context in U.S. v. Mapelli, 971 F.2d 284 (95h Cir. 1992). 

This article which was written in 2001, has been partially outdated when the U.S. Supreme Court decided some of the issues discussed herein, when applied to incarcerated prisoners right's concerning treatment disclosures.  See Mc Kune v. Lile, No. 00-1187, Decided June 10, 2002, 536 U.S. ____ (2002).  It should be noted that this was a 5 to 4 decision to reverse the appellate court's decision.  However, it was a plurality decision as to the issues.  This is very much unsettled, with many issues unanswered.  Nonincarcerated persons should still be able to argue Fifth Amendment privilege or a grant of immunity.  Time will tell.