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To those of us who specialize in the area of Colorado Sex Offender cases, a client may want to accept a plea bargain because of the risks of going to trial ( a life sentence . At the same time the client may deny having committed the crime. In every other area of criminal law, participating in probation while denying the actual commission of the crime that is the subject of a plea bargain, is permitted. In the area of sex crimes law, it is not.
A defendant who pleads guilty and has not accepted responsibility for the crimes charged – is playing a dangerous game.
An analysis and examination of the Colorado State standards in the area of denial is instructive.
The Colorado Sex Offender Management Board Standards say this about denial:
3.600 Community Placement and Treatment of Sex Offenders in Denial
3.610 Sex offenders who continue to deny the conviction offense or continue to be highly defensive should not be placed on community supervision.
Discussion: Secrecy, denial, and defensiveness are part of the sex offenders’ disorder. Almost all offenders fluctuate in their level of accountability or “denial” of the offense. Although most are able to admit responsibility for the act relatively soon after conviction, some offenders do not. An offender’s continued denial of the act after plea bargaining or conviction threatens community safety and is highly distressing and emotionally damaging to the victim.
HMS Translation: what this means is that the probation department will tolerate a period of time – usually 3 to 6 months of denial – then – the Defendant becomes a “threat to community safety” and ” should not be placed on community supervision.” The latter phrases are code for .. No probation a – straight to prison.
3.620 Level of denial and defensiveness shall be assessed during the mental health sex offense-specific evaluation.
Discussion: In assessing an offender’s risk and amenability to treatment during the mental health sex offense-specific evaluation, it is important to take into account the offender’s continued denial and defensiveness. In some cases, denial alone may be regarded as a sufficient factor to eliminate an offender from a recommendation for community-based treatment. Continued strong or severe denial of the instant offense (as opposed to fluctuating or moderate denial), and/or
continued strong defensiveness in general (as opposed to fluctuating or moderate defensiveness), suggest a level of risk that should rule out an offender’s eligibility for community-based treatment.
3.630 When a sex offender in strong or severe denial must be in the community (e.g. on mandatory parole), offense-specific treatment shall begin with an initial module that specifically addresses denial and defensiveness. Such offense-specific treatment for denial shall not exceed six months and is regarded as preparatory for the remaining course of offense-specific treatment.
Discussion: Although all offense-specific treatment programs usually begin by addressing denial and defensiveness, treatment for strong or severe deniers typically occurs separately from regular group therapy that is provided for offenders who have, at a minimum, admitted the crime of conviction. Treatment for such denial may include a variety of modalities specifically designed to reduce denial and resistance to treatment.
3.640 Supervision and behavioral monitoring of sex offenders in strong or severe denial should be maximized during this initial treatment phase. Home detention, electronic monitoring, field supervision, and/or stringent restrictions on offenders’ time are examples of additional conditions that may be indicated during treatment for denial.
3.650 Offenders who are still in strong or severe denial and/or are strongly resistant after this six (6) month phase of treatment shall be terminated from treatment and revocation proceedings should be initiated if possible. Other sanctions and increased levels and types of supervision, such as home detention, electronic monitoring, etc., should be pursued if revocation is not an option. In no case should a sex offender in continuing denial of the facts of the offense remain indefinitely in offense-specific treatment.
Discussion: It is important that judges support community safety by proceeding with revocations for those sex offenders whose continued denial and/or resistance make treatment impossible.
3.660 Treatment for denial may be provided only by treatment providers who also meet the requirements to provide sex offense-specific treatment, as defined in this document.
3.670 Progress in treatment of denial is reflected by the offender’s decreased resistance to treatment, decreased defensiveness and denial, and increased accountability for behavior. This progress should be documented by:
The offender’s compliance with the conditions of offense-specific denial treatment
The offender’s verbal disclosures during treatment that document changes in denial
Changes in the offender’s responses on standardized tests
The timely and competent completion of homework and in-session assignments
Te offender’s willingness to schedule and undergo polygraph testing
3.680 Treatment providers and case management 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 the next phase of offense-specific treatment at the end of six months. It is especially important to document measures of offenders’ acceptance of responsibility for their offenses.
Discussion: In the event that an offender fails to make sufficient progress in the attainment of those goals and is therefore terminated from treatment, documentation is imperative for future revocation proceedings.
Once you have an understanding of the method and analysis of denial by the authorities – you must examine the various level of denial and their impact. Here are those standards:
Level 3: Projections/Strong Avoidance. This level consists of two types of stronger avoidance indicative of developmentally immature defenses such as “splitting.” Offenders at this level do not admit committing the current sexual offense, but may admit to engaging in “less harmful” behaviors, or they may simply say they cannot recall the behavior in question.
Type 7: Denial “Screen.” The offender denies committing the current sexual offense, but admits that otheraspects of his behavior (usually more “acceptable” aspects) were somehow harmful to the victim For example, “I hit her, but I did not rape her.”
Type 8: False Dissociation. The offender claims that he does not remember the offense and therefore cannot admit to committing it. For example, he might state that he was drunk at the time.
Level 4: Primitive Denial/Severe Avoidance. This level consists of four types of denial which reflect severe statement of avoidance indicative of primitive defenses such as very strong “splitting,” full “denial,” and, possibly, “dissociation.” Offenders at this level deny committing the current sexual offense and may refuse to acknowledge responsibility for even remotely similar behaviors. These types of denial are most resistant to change.
Type 9: Current-Incident-Specific Denial. The offender admits committing past sexual offenses, but not the current offense.
Type 10: “Plausible” Denial. The offender denies committing the current offense but is able and willing to accurately describe the harm resulting to a victim of such an offense.
Type 11: Full Denial. The offender denies committing any offense and does not seem willing to acknowledge the harm of such offenses.
Type 12: Pathological Denial. Client denies committing any offense and is excessively hostile, delusional, or defensive.
If the prosecutor has a strong case against a charged individual, and if a plea bargain is an option a client wishes to consider with the advice and analysis of an experienced and effective Colorado Criminal Defense Sex Crimes Lawyer, then a thorough understanding of the expectations of the relevant probation department’s Sex Offender Intensive Probation officers’ tolerance for levels of denial is critical to understanding whether the client should reject all offered plea agreements.