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The decision – the option of rejecting probation in a Colorado misdemeanor Sex Crime case is becoming a strong reality for defendants convicted for many relatively minor Colorado sex crimes. This article addresses that option.
The answer is a risks and benefits analysis of the stringent – nearly impossibly – tough conditions of probation for sex offenders in Colorado.
The Standards impose a difficult and detailed regimen on the offender who is on probation. They start with the requirement of maximum supervision, also known as Intensive Supervised Probation (“SOISP”).
They also prohibit victim contact and unapproved contact with children under the age of 18, including the offender’s own children. Further required conditions establish geographic restrictions designed to prevent contact with potential victims (such as children and others), provide similar restrictions on employment and volunteer activity, ban possession of sexually-oriented material, and ban the use of alcohol.
When placed on probation, offenders may be required to live only in an approved residence and must submit blood and saliva samples for DNA testing. When defendants first meet with the probation officer, they are given an advisal concerning the sex offender’s supervision and treatment. This disclosure/advisement provides probation’s view of its role, and its tone is incredibly tough and unyielding.
Consider this scenario – a defendant charged with a misdemeanor sex offense elects to go to trial. During trial, he does not testify and fiercely defends the case and maintains his innocence. The jury – persuaded by the hysteria surrounding even an accusation of a Colorado sex crime – even a misdemeanor – convicts.
The Defendant is then sentenced to probation, and launches an appeal. As a condition of probation, he must participate in sex offender group therapy. If he denies or refuses to discuss the facts of the offense (as they appear in the police reports and according to the victim), he will be punished / sanctioned under the CSOMB Standards for his denial. He is placed in a “deniers” group for a limited amount of time.
Unless he admits the sex crime – his probation is revoked and faces jail for each revocation. If he never admits -or emerges from the deniers group – he spends longer and loner periods of time in jail.
The Colorado State legislature believes that the majority of persons who commit “sex crimes” will continue to present a danger to the public unless they are incarcerated or supervised with treatment.
The Colorado General Assembly therefore created the Colorado Sex Offender Lifetime Supervision Act of 1998(Act), which contains comprehensive measures for treatment and registration of sex offenders. The Act also created a Colorado Sex Offender Management Board (CSOMB) to oversee the treatment of sex offenders and to create guidelines and standards for treatment.
When a sex offender is sentenced to probation, he must first be sentenced to SOISP. Section 18-1.3-1007, C.R.S.2003; see § 18-1.3-1007(1) (A) (V) (applies to misdemeanor sex crimes.)…when such a sentence is imposed, the offender is required to participate in a sex offender treatment program:
If the court sentences a sex offender to probation, in addition to any conditions imposed pursuant to section 18-1.3-204, the court shall require as a condition of probation that the sex offender participate until further order of the court in the intensive supervision probation program created pursuant to section 18-1.3-1007.
Section 18-1.3-1008(1), C.R.S.2003 (emphasis added). The programs use licensed providers who must adhere to CSOMB Standards and Guidelines.
(1)(a) The judicial department shall establish an intensive supervision probation program for sex offenders sentenced to probation pursuant to this part 10. In addition, the court shall require a person, as a condition of probation, to participate in the intensive supervision probation program established pursuant to this section if the person is convicted of one of the following offenses and sentenced to probation:
(I) Indecent exposure, as described in section 18-7-302(4);
(II) Criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in section 18-1.3-1003(5) (a), which attempt, conspiracy, or solicitation would constitute a class 5 felony;
(III) Any of the offenses specified in section 16-22-102 (9) (j), (9) (k), (9) (l), (9) (n), (9) (o), (9) (p), (9) (q), (9) (r), or (9) (s), C.R.S.;
(IV) Any felony offense that involves unlawful sexual behavior or any felony offense with an underlying factual basis, as determined by the court, resulting in a conviction or plea of guilty or nolo contendere on or after July 1, 2001;
(V) Sexual assault in the third degree, in violation of section 18-3-404(2), as it existed prior to July 1, 2000.
(b) The judicial department may establish the intensive supervision probation program in any judicial district or combination of judicial districts.
(1.5) In addition to the persons specified in subsection (1) of this section, the court may require any person convicted of felony failure to register as a sex offender, as described in section 18-3-412.5, and sentenced to probation to participate, as a condition of probation and until further order of the court, in the intensive supervision probation program established pursuant to this section.
(2) The judicial department shall require that sex offenders and any other persons participating in the intensive supervision probation program created pursuant to this section receive the highest level of supervision that is provided to probationers.
The intensive supervision probation program may include but not be limited to severely restricted activities, daily contact between the sex offender or other person and the probation officer, monitored curfew, home visitation, employment visitation and monitoring, drug and alcohol screening, treatment referrals and monitoring, including physiological monitoring, and payment of restitution.
In addition, the intensive supervision probation program shall be designed to minimize the risk to the public to the greatest extent possible.
(3) The judicial department shall establish and enforce standards and criteria for administration of the intensive supervision probation program created pursuant to this section.
(4) For the purposes of this section, “convicted” means having entered a plea of guilty, including a plea of guilty entered pursuant to a deferred sentence under section 18-1.3-102, or a plea of no contest, accepted by the court, or having received a verdict of guilty by a judge or jury.
Here is the “standard” that addresses the denial of the commission of the crime:
Standard 3.530 – When a sex offender in severe denial is placed in the community, … a Denier Intervention shall specifically address the sex offender’s denial and defensiveness as it relates to preventing the sex offender from successfully participating in sex offender treatment. Denier Intervention shall not exceed three months and shall be regarded as preparatory for offense-specific treatment.
Discussion: Although all offense-specific treatment programs usually begin by addressing minimization and defensiveness, Denier Intervention for those in Level 3 Denial, typically occurs separately from regular group therapy that is provided for offenders who have, at a minimum, admitted the crime of conviction.
Level 3 deniers are not considered amenable to offense specific treatment. They do not admit sex offenses and therefore do not acknowledge a need to work on issues that contribute to their
offending behavior or re-offense plans. Since severe denial prevents therapists from obtaining critical information from the offender, they are unable to develop effective interventions to address the offending behavior.
Further, including deniers in regular groups may disrupt the group’s focus on treatment tasks and encourage other offenders to deny their crimes and can increase their level of denial. Denier Intervention for Level 3 Denial may include a variety of modalities specifically designed to reduce denial and resistance to treatment and supervision.
During the time an offender is attending Denier Intervention, the CST should work closely together to ensure maximum containment, supervision and accountability measures are enforced for the offender. Intermediate sanctions should also be used during the course of Denier Intervention to reduce denial and encourage disclosure.
In addition to requiring the offender to undergo an instant offense polygraph regarding the offense of conviction, the CST shall also require the offender to undergo Maintenance polygraph testing to monitor current behavior and enable the CST to respond to concerns quickly.
The polygraph is central to sex offender evaluation and treatment under the Standards. The substantial reliance placed on the defendant’s polygraph performance by the Standards presents a problem because of the polygraph’s questionable reliability, at least when assessed by the courts.
The Standards provide for specific-issue polygraphs, disclosure polygraphs, and maintenance polygraphs on an ongoing basis. They acknowledge that a revocation cannot be premised solely on the failure to pass the polygraph, but failure to take the polygraph is a violation of probation. Also, two or more non-deceptive polygraph examinations must be completed before treatment as a conditional probation can be terminated.
Standard 3.540 Use of the polygraph is important in reducing an offender’s denial. Deniers shall be referred for an instant offense polygraph examination. Documentation is imperative for future revocation proceedings, in the event that an offender fails to make sufficient progress and is therefore terminated from Denier Intervention.
Standard 3.550 Offenders who are still in Level 3 Denial and are strongly resistant after this three (3) month phase of Denier Intervention shall be terminated from treatment and revocation proceedings should be initiated.
Other sanctions and increased levels and types of supervision, such as home detention, electronic monitoring, etc., should be pursued if a revocation does not occur. In no case should a sex offender in continuing denial of the sexual offense remain indefinitely in Denier Intervention.
Discussion:It is important to support victim recovery and community safety by proceeding with revocations for those sex offenders whose continued denial or resistance make treatment ineffective.
Standard 3.560 Denier Intervention shall only be provided by treatment providers who also meet the requirements to provide sex offense-specific treatment, as defined in this document.
Standard 3.570 Progress in Denier Intervention is reflected by the offender’s decreased resistance to treatment, decreased defensiveness and denial, and increased accountability for offense behavior.
Standard 3.580 Treatment providers and community supervision teams must establish specific and measurable goals and tasks for offenders in denial. These measurable goals will establish whether offenders have reached the threshold of eligibility for referral to offense-specific treatment at the end of three months or earlier. It is especially important to document offenders’ accountability for their offenses.
Among the CSOMB Standards and Guidelines is § 5.510B, which states, “Sex offenders shall have no contact, nor reside with children under the age of 18, including their own children, unless approved in advance and in writing by the supervising officer in consultation with the community supervision team.”
This is especially problematic when the victim of the offense was not one of the offender’s children. Immediately following sentencing, for example, a probationer could be forced to move out of his home if any children are present.
Recent amendments to the Standards, however, now authorize contact once the supervising probation officer, treatment provider, and polygrapher (“treatment team”) unanimously approve such contact.
Standard 5.740 governs supervised contact with the offender’s own children when the children are not his victims. The children are given a veto over the decision to allow contact, and there are other detailed criteria.
The Standards seem to treat the defendant as a commodity. Although they pay lip service to respecting the defendant as an individual, the Standards’ failure to address the defendant’s post-sentencing rights is glaring and may encourage defendants to be less cooperative. The Standards’ tone also seems to influence individual probation and parole officers, some of whom treat defendants as crimes waiting to happen rather than as individuals with a wide range of interests in treatment participation.
No other form of probation requires the probationer to ADMIT their guilt to successfully complete probation. A Defendant can commit a robbery – a theft – even a homicide and still successfully complete probation without ever admitting they are a robber, a thief or a murderer. The purpose of probation is make certain they do not create new victims and to pay their debt to society.
I have represented hundreds, of individuals that have been faced with the decision to either “lie” in sex offender therapy and try to make a go of it.. admitting to crimes they believe they have never committed – so that they can “successfully complete” their probation sentences …
…tell the truth to the Court – reject the verdict of the jury or the advice of a former attorney – and ask to be sentenced consistent with their ethic and their deeply held belief in their innocence.
The truth is this … the decision to try the “deniers group”and to try to “fake it” – to lie to their therapist and their probation officer is a short term strategy and is nearly impossible to carry off in the long term… and will lead to much more jail and or other punitive sanctions including the denial of contact with their own and other children while they are in the deniers group and throughout the inevitable probation violations to follow.
(1) If the court sentences a sex offender to probation, in addition to any conditions imposed pursuant to section 18-1.3-204, the court shall require as a condition of probation that the sex offender participate until further order of the court in the intensive supervision probation program created pursuant to section 18-1.3-1007.
..This statute includes the Colorado misdemeanor crime of Indecent Exposure …. this is the most common crime where the individual opposes sex offender probation.
(1) A person commits indecent exposure:
(a) If he or she knowingly exposes his or her genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person with the intent to arouse or to satisfy the sexual desire of any person;
(b) If he or she knowingly performs an act of masturbation in a manner which exposes the act to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person.
(2)(b) Indecent exposure is a class 1 misdemeanor
Although a risky approach – the decision to stick with one’s principles and reject this broken system of cognitive therapy and one size fits all approach to probation – may be the best choice – the best option for an individual’s honor and his future and the future of his family.
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Our free consultation will help you understand all of your options and what legal defenses you may have. If you or a loved one has been arrested or is being questioned regarding a criminal matter contact our offices to speak to one of our experienced Denver, Colorado criminal trial lawyers. H. Michael Steinberg is available for consult 24 hours a day 7 days a week. In addition all clients are given H. Michael’s cell phone number so they have access when needed.