By H. Michael Steinberg Colorado Sex Crimes Defense Lawyer
Colorado Criminal Sex Crimes Law – Denial While On Probation And Implications For Sex Offender Probation Violations And Re-Sentencing – Recently (2016) a man in Colorado Springs was sentenced to 10 years to life on Colorado Sex Offender Intensive Supervision Probation (SOISP). While the plea agreement kept him out of prison after pleading guilty to molesting a child, he refused to admit much of what the victim claimed occurred during the crimes.
This is called denial.
While probation was granted on the “front end” of this sentence – the man is teetering on a violation of that sentence and spending the rest of his life in prison.
The denial here is very common. The man admitted touching the young girl “inappropriately” but refused to admit that the touching was for “sexual gratification.” For probation to accept him into treatment as part of his probation – the man will be required – to be successful on SOISP – to get past his “denial” and accept responsibility for every element of the crime of sexual assault on a child.
The Judge said this:
…people who refuse to accept their guilt have a difficult time completing sex offender probation, which involves polygraph interviews.
The DA in the case said this:
If he doesn’t get to the point where he can fully admit what he did, we’ll be seeing him again,” she told the court.
The Defendant’s own lawyer said this:
(He is a) classic sex offender behavior of partial denial, partial admission.
The Colorado Sex Offender Standards Dealing With “Managing” Denial
Colorado has – unlike many states – a complete set of “guidelines” that govern the treatment of Colorado Sex Offenders while on probation. These can be found online at the Colorado Bureau of Investigations’ Colorado Sex Offender Website
The standards that apply to the “management” of a Colorado Sex Offender’s level of denial begin with the Colorado Sex Offender Management Board Standard (CSOMB) 3.500 – which reads in full as follows:
SOMB Standard – 3.500 Managing Sex Offenders in Denial
Denial is a psychological defense mechanism used to protect the ego from anxiety producing information. In addition to being a psychological defense mechanism, denial may also be a normal conscious action to avoid internal or external consequences associated with the offense behavior. For the purpose of this section, denial is defined as the failure of an offender to accept responsibility for his/her offense on a continuum from moderate to high to severe.
There is conflicting research regarding denial as a risk factor for sexual re-offense. However, the literature also frames denial as an issue of responsivity to treatment. Therefore, the intent of this section is to consider offender denial and treatment efficacy, not the risk factors associated with offender denial.
Secrecy, denial, and defensiveness are behaviors frequently exhibited by sex offenders. Research has shown cognitive distortions are significantly associated with greater denial/minimization. Furthermore, attitudes supportive of sexual offending behavior have been documented to reliably predict sexual recidivism. Almost all offenders fluctuate in their level of accountability or minimization of the offenses.
Although most are able to admit responsibility for the sexual offense relatively soon after conviction, some offenders do not. Denial impedes treatment engagement, progress and efficacy. Offender denial is also highly distressing and emotionally damaging to victims.
When offenders take responsibility for their offense, they admit to the commission of the unlawful sexual behavior and the intent behind the behavior. Failure to take responsibility for the sexual offense by attributing it to external causes rather than the result of personal decisions and behavior has been identified as a risk factor for sexual re-offense.
Acceptance of responsibility is unrelated to an admission of all sexual offending behaviors for which the offender was convicted. Taking responsibility for the sexual offense also includes the recognition of the harmful impact the behavior has had on the victim, and exhibiting motivation to engage in treatment to address the sexually abusive behavior therapeutically. It is important to recognize that motivation can be either external (system imposed) or internal (real willingness to change).
One of the goals of treatment is to inculcate genuine internal motivation for change.
It is very important to remember that denial can take many forms and may change or vary in intensity over the course of treatment. Denial is considered to be a critical treatment target. The more common types of denial presented by sex offenders consist of the following: refutation of the offense, denial of intent, denial of extent, assertion of victim willingness, denial of planning and denial of relapse potential.
The Colorado Sex Offender Management Board Standards – Categorizing The Levels Of Denial
To understand when – or if – Colorado Sex Offender Intensive Supervision Probation is in danger of being revoked – you must look to the SOMB standards governing the issue at hand. Denial is addressed very specifically in the following standards.
Standard 3.510 addresses the recognizes the different intensities of denial.
SOMB Standard – 3.510 The Levels of Denial
The following is a description of different levels or intensity of denial.These are intended to be used as a guide to help determine offender denial and a potential treatment intervention. They should be used in conjunction with the remainder of 3.500.
Consensus should be reached amongst the CST (HMS – the Community Safety Team) when determining an offender’s level of denial. It is imperative that the offense specific evaluator/therapist has the final discretion due to clinical judgment and expertise in this specific area.
Level 1: Moderate Denial
This level consists of offenders who accept most of the responsibility for the unlawful sexual behavior involved in the offense, but may place some blame elsewhere. They may either justify their intent behind its occurrence and/or minimize its importance or harmful impact on the victim. These offenders demonstrate some motivation to change.
Level 2: High Denial
This level consists of offenders who accept some of the responsibility for the unlawful sexual behavior in the offense. However, they place most of the blame elsewhere. They may deny the intent behind their unlawful sexual behavior and/or may not recognize the harmful impact their behavior has had on the victim. They may admit engaging in other harmful sexual behavior. They exhibit some motivation to change, although it may only be externally motivated.
Level 3: Severe Denial
This level consists of offenders who do not accept any responsibility for any unlawful sexual behavior. They deny committing the current unlawful sexual behavior or even remotely similar behavior. They may not recognize the harmful impact sexual offending behavior has on victims (even if it is not their own behavior) and appear to have no motivation to change. Offenders presenting with this level of denial may blame the victim or the system, and/or present as excessively hostile or defensive.
SOMB Standard – 3.520 This standard addresses the use of the POLYGRAPH to attempt to identify, quantify and monitor the levels of denial.
SOMB Standard – 3.520
Polygraph examinations are a useful tool in reducing an offender’s denial. Deniers shall be referred for an instant offense polygraph examination. Arousal assessment or physiological assessment instruments may be used to assist this process. This applies to offenders evaluated to be in any level of denial.
In addition to requiring the offender to undergo an instant offense polygraph regarding the offense of conviction, the CST may also require the offender to undergo maintenance polygraph testing to monitor current behavior and enable the CST to respond to concerns quickly.
SOMB Standards – 3.530 – 3.540 – 3.550 and 3.660 – address the consequences of the level of denial identified and the effect of that denial on continued progress in a Colorado Sex Offender Treatment Program.
SOMB Standard – 3.530 – Moderate and High Levels Of Denial – Continued Treatment
Sex offenders who are evaluated and found to be in Level 1, Moderate Denial or Level 2, High Denial are not prohibited from participation in sex offense specific treatment solely based on these levels of denial.
SOMB Standard – 3.540 – Identifying Level 3 – Severe Denial
When making recommendations for offenders evaluated and found to be in Level 3, Severe Denial, the evaluator shall consider the offender’s risk to re-offend sexually, his/her general criminogenic risk, victim impact and the offender’s protective and aggravating factors. There should be a balance between the offender’s need for treatment and mitigating and risk factors because untreated offenders are often not in the best interest of community or victim safety.
SOMB Standard – 3.550 – Severe Denial and The Denier’s Group
Sex offenders who are evaluated and found to be in Level 3, Severe Denial, are not appropriate to participate in offense specific sex offender treatment; they shall participate in a Denier Intervention treatment to specifically address their denial and defensiveness.
Denier Intervention should be performance based and establish clear expectations, target factors that may motivate the offender to remain in denial and apply performance based discharge criteria. Denier intervention for those evaluated to be in Level 3 denial occurs separately from regular offense specific treatment.
The goal of Denier Intervention is to foster a therapeutic alliance using a variety of treatment modalities and assist the offender in taking at least some responsibility for his/her offense in order to enter full offense specific treatment.
SOMB Standard – 3.560 – 90 Day Limit On Continued Level 3 – Severe Denial – Then Termination From Treatment
Denier intervention shall not exceed 90 days unless the CST achieves consensus and provides documentation that the offender has made some progress which would justify an extension of Denier Intervention for a prescribed period of time.
Offenders who are still in Level 3 denial and are strongly resistant after any phase of Denier Intervention is completed shall be terminated from treatment and revocation proceedings should be initiated.
On occasion the Community Safety Team will permit continued treatment past the 90 days after consideration of the following factors:
The CST should consider the following factors before granting any extension:
1) Level of risk to sexually re-offend
2) Level of risk to commit a new criminal offense
3) Protective factors
4) Engagement and progress made in the Denier Intervention process
5) Compliance with supervision conditions
6) Victim input, as it is important to support victim recovery
7) Criminogenic needs, including but not limited to, the following: Deviant sexual interests/arousal, sexual preoccupation, pro-offending attitudes and beliefs, intimacy deficits, emotional congruence with children, callousness and pervasive anger or hostility, self-regulation deficits, social deviance, impulsive criminal lifestyle, dysfunctional coping, and
8) Any other factor making treatment ineffective for the offender
Colorado Criminal Sex Crimes Law – Denial While On Probation And Implications For Sex Offender Probation Violations And Re-Sentencing
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