polygraphs: liberty interests and the rule of law

The Pueblo (CO) Chieftain published a bold, important statement about the use of polygraphs:

All uses of polygraphs in the legal system should be abolished.

Earlier, the Denver  Post reported that the Colorado Sex Offender Management Board includes the owner of a polygraph company and when the use of polygraphs are discussed, that man recommends the use of polygraphs. The Denver Post said the use of polygraphs "borders on a scam."

It is good to see polygraphs exposed as the junk science they are. I blogged about the Post stories here.

In the Chieftain, an opinion piece by Dennis Maes, a retired chief Pueblo district court judge, calls out...

...the involvement and participation of the judiciary, probation and the Department of Corrections in perpetuating the use of polygraphs. Why is this revelation significant? Because the Colorado Supreme Court and the Colorado Court of Appeals have both condemned and prohibited the use of polygraphs in court proceedings. 

Good point. If courts have prohibited polygraph results, why are they still mandating their use for sex offenders? It is hard to explain any better than Maes does:

According to existing Colorado law, the results of polygraph examinations are per se inadmissible for any purpose in criminal and civil proceedings in Colorado courts because they are scientifically unreliable. Simply put, they are worthless because they have zero evidentiary value and are, therefore, irrelevant. [My emphasis throughout.]

If they cannot be used, they obviously should not be ordered by the court. To order a useless report paid for by taxpayers is not only fiscally irresponsible but unconscionable. 

Despite established law, the judiciary, probation and DOC continue to require polygraphs. This practice is a clear assault on the Rule of Law which embodies the belief that the law applies equally to all individuals and institutions, including the judiciary, with no exceptions. The Rule of Law is a cornerstone of a free democratic society.

The supervision of a sex offender on probation requires the sex offender to sign terms and conditions of probation. which can only be ordered and changed by the court. A stock condition is the requirement to submit to polygraph examinations. Failure to comply with the terms and conditions subjects the sex offender to punitive sanctions, including the loss of liberty interests.

The argument will be advanced by probation and others that probation will not be revoked based solely on the results of a polygraph examination. There are those who would disagree. Nevertheless, current probation standards, approved by the court, provide that a sex offender may be regressed in treatment if the offender produces a deceptive polygraph. The regression may obviously be based solely on the results of a polygraph.

Regression? The practice of making someone back up to a previous point in his treatment. More time in treatment can affect how much freedom the parole or probation officer allows the offender.

Liberty interests.

A further dilemma faced by an offender occurs when a provider ignores an objection registered by the offender or offender's attorney to submit to a polygraph based on existing state law. Many, if not all, providers and probation officers treat the proper objection as obstruction and a violation of probation either threatening to or filing revocation proceedings. Said behavior is a violation of due process.

Many, if not all, providers will refuse to treat an offender who refuses a polygraph. To exacerbate the problem, many providers treat the refusal as a violation, which subjects the offender to punitive action even in the case when the court might not require the treatment.

Read that again. Treatment providers can impose punitive actions on an offender for refusing to submit--or objecting!--to a polygraph, even when the treatment is not required by the courts.

When a treatment provider can punish a client for questioning treatment requirements, the treatment provider is clearly not a part of the therapeutic world.

In the interest of full disclosure, concerns about the current polygraph practice and public funding for polygraphs have been shared by way of protest with Chief Justice Nancy Rice, Rick Raemisch, executive director of the Colorado Department of Corrections, and the chief judges of each judicial district. The responses submitted by the Supreme Court and DOC appear to carve out exceptions to the law where none exist and certainly not recognized by state law.

Maes is impatient:

It is perplexing why the judiciary has been so resistant to ridding the courts of a practice condemned by its own appellate courts.

He says that if the courts will not follow established law, the Legislature should tackle the subject. One suggestion from Maes:

First, the Legislature immediately could suspend any state funding for polygraph examinations. Said action would not only be a firm confirmation of the significance of the Rule of Law but the fiscally responsible thing to do as stewards of the taxpayer's money. To continue a practice that has been debunked by the courts simply defies logic.

This is truly a breath of fresh mountain air.

Maes does not question the utility of polygraphs because that question was settled long ago when courts called the tests scientifically unreliable. He is angry that courts ignore those findings.

He lays the blame for the continued use of junk science at the feet of the judiciary, probation, and the Department of Corrections.

He recognizes what families of sex offenders already know:

To be certain, there will be many who have little or no concern whether sex offenders are treated fairly.

...and delivers a final blow at those who continue to treat sex offenders as less than worthy of treatment that follows the law:

What is important, however, is that society ensures that the sanctity of the Constitution be safeguarded by protecting the rights and protections it guarantees to all without exception.

Readers: Make sure that probation and parole offices and treatment providers read Maes' fiery blast. If you are still awaiting sentencing, make sure your attorney sees this and raises a protest to any polygraph requirement.

Polygraphs are not just a waste of money and time. They may not be allowed in court but they are currently being used to revoke parole or probation.

Liberty interests. Rule of law.

what happens when a molester moves in next door to his victim?

A man molested his niece when she was a little girl and 12 years later when he was released from prison, he moved in with his mother next door to the victim.

“I was pretty outraged, but I have channeled that rage into a more positive outlet, which, for me, is sharing my story and empowering other victims of sexual assault,” [the victim] says, adding her parents researched state laws in the hopes of blocking the move, only to learn they had no legal recourse.

I am no psychologist but this sounds healthy. This young woman's story can help other families to recognize what may be happening in their own homes. Some former victims may not be comfortable telling their story and we must respect that.

We must also respect the discomfort caused when her uncle moved in next door. When we remember that child sexual abuse most frequently happens within a trusted family circle, we can see that a great number of victims must have to deal with encountering their former abuser.

A family--and any counselors--would do well to help the victims learn to deal with those encounters and to help the former abuser understand how to respect the victim's boundaries.

“I was coming back from class and he was out mowing in my grandmother’s backyard, and it made me uneasy just being home,” Dyer tells PEOPLE. “I go to school in Edmond so I’m only home half the time, and I think twice before going home now. I have a very close family, so it’s hard for me to not constantly be with them.”

Her unease is easy to understand.

It is also easy for legislators to jump on board the outrage train.

[...the victim] and her family have been meeting with State Rep. Kyle Hilbert, who tells PEOPLE he is committed to introducing fresh legislation to bar offenders from living within a certain distance of their victims.

Hilbert's legislation will not be engineered narrowly to this particular victim and offender. It will apply across the board to all offenders and victims, even those who want to find a way to reconcile, and even those who simply want the offender to have a place to live.

Again, most child sexual abuse happens inside families, or inside the circle of trusted friends. There are many families who see the value in keeping the family whole and not burdening the victim with a trail of broken family relationships.

Dyer says she no longer wants anything to do with her grandmother because of her decisions; when she was in high school, her uncle was released and lived with her grandmother until he violated probation and “went right back” to prison.

“She is supposed to protect me, she is supposed to take care of me,” Dyer says, “so for her to turn on me like this, she obviously doesn’t care about me.”

This victim has already (understandably) lost a relationship with her uncle and now her grandmother.

The criminal justice system should try to disrupt families as little as possible and yet Hilbert's legislation will cause more disruption for families and victims who have made choices different from Dyer's family.

Child victims will go through several phases of understanding what happened to them, depending on their ages. A small child with no understanding of sex may know only that the molester did something wrong and has to go away.

As the child approaches adolescence and begins to experience his or her own sexuality, understanding of the crime will shift. The new understanding will answer some questions for the child and will almost certainly bring up new questions.

When the victim has children, the understanding of the crime may change again...and yet again when her children get into trouble and need her protection. At that point, the victim may understand her grandmother's actions much differently.

Legislators need to see that what a victim feels today will change over time. The legislation will almost certainly not account for those changes.

Each family will deal with victims and offenders in its own way. Some family members will let their own outrage frighten the child; some will make every effort to let the child deal with events at her own level of understanding. Protecting the child from the adult understanding of what happens is essential to some, though some are unable to accomplish that.

Legislation that tries to solve a complicated situation like this will almost surely make things worse for some families. When a family wants the offender to come back home and live a law-abiding life, finding a residence for the offender is the first priority. In some cities, it is nearly impossible for an offender to find a place to live. If his mother's house is where he can live, why should legislation get in the way of that?

Legislators are the ones who create residence restrictions. Without those restrictions, the offender has a better chance of living away from family that doesn't want him around.

That problem cannot be solved by creating even more residence restrictions. Complicating the lives of offenders and their families makes it more likely that former offenders will break laws and be returned to prison, even if the law broken is not another sex offense.

Legislators need to back off and let families make their own way.

researcher creates virtual child porn

A researcher in Canada is using virtual reality with plethysmography. Interesting work, for those bent that way.

In a maximum security mental health facility in Montreal is a “cave-like” virtual reality vault that’s used to show images of child sexual abuse to sex offenders. Patients sit inside the vault with devices placed around their penises to measure signs of arousal as they are shown computer-generated animations of naked children. 

Patients in a maximum security mental health facility. Not volunteers.

“We do develop pornography, but these images and animations are not used for the pleasure of the patient but to assess them,” said Patrice Renaud, who heads up the project at the Institut Philippe-Pinel.

I must say, so far it sounds nothing like pleasure. Renaud says,

“It’s a bit like using a polygraph but with other measurement techniques.”

Ah. A bit like palm-reading, too, except palm-reading doesn't try to sound scientific.

The patients sit on a stool inside the chamber wearing stereoscopic glasses which create the three-dimensional effect on the surrounding walls. The glasses are fitted with eye-tracking technology to ensure they aren’t trying to trick the system by avoiding looking at the critical content. 

“These guys do not like going through this assessment,” said Renaud, pointing out that the results can be shocking for the patient.

They don't like being treated like monkeys in a lab? Well, there's a surprise.

“It’s not easy for someone to discover he is attracted to violently molesting a kid. He may have been using the internet for some masturbatory activities using non-violent images or videos of children – which is not a good thing. But being tested in the lab and knowing he is also attracted to violence may be something that’s very difficult to understand.”

Is the point to find out what turns people on or to find out whether they will commit a sexual assault?

If they showed VR images of gay porn and aroused someone who previously thought he was straight...would that mean that the guy is likely to commit sex crimes against gays? We had better hope not, since a large number of heterosexuals watch gay porn.

If this study were trying to learn something interesting, it would test a control group of people who have not been arrested and have not suffered from mental illness.

The article discusses the fear that the child porn Renaud develops could find its way into the wild where it could entertain the wrong people.

The lab is under intense scrutiny from ethical committees and the police in Quebec. The computer-generated imagery must be encrypted and stored in a highly secure closed computer network inside the maximum security hospital so that the material doesn’t fall into the wrong hands. 

However, at a time when virtual reality pornography is on the rise, it’s not unreasonable to assume that someone will – if it hasn’t already happened – create virtual reality child abuse images designed explicitly to arouse rather than diagnose pedophiles. 

Thanks to advances in computer graphics, such experiences could be created without ever harming or exploiting children. But even if no children are harmed in the making of such imagery, would society tolerate its creation? Could the content provide an outlet to some pedophiles who don’t want to offend in real life? Or would a VR experience normalize behavior and act as a gateway to physical abuse? [My emphasis, throughout.]

If we are more interested in stopping child sexual abuse than in punishing those who look at illegal images--and that seems to be a big 'if'--then those are good questions. Is there a good application for virtual child porn?

Ethan Edwards, the co-founder of “Virtuous Pedophiles”, an online support group for people attracted to children but who do not want to molest them, argues virtual reality could help prevent real-life offences. 

Edwards believes that, provided the imagery of children is computer-generated and doesn’t involve any real victims, it should be legal, as should life-size child sex dolls and erotic stories about children. 

“I have a strong civil liberties streak and feel such things should be legal in the absence of very strong evidence they cause harm,” he said.

Nick Devin, a pedophile and co-founder of the site, called for thorough scientific research. “The answer may be different for different people. For me, doing these things wouldn’t increase or reduce the risk to kids: I’m not going to molest a kid whether I fantasize or not.” 

It’s a view echoed by Canadian forensic psychologist Michael Seto. He believes that VR could provide a safer outlet for individuals with well-developed self control. 

“But for others, such as those who are more impulsive, prone to risk-taking, or indifferent about the effects of their actions on others, then access to virtual child pornography could have negative effects and perhaps increase their desire for contact with real children.”

It’s a risk that concerns Renaud, who describes VR child abuse imagery and child-shaped sex robots as “a very bad idea”.

He says this as he develops VR child abuse imagery.

“Only a very small portion of pedophiles could use that kind of sexual proxy without having the urge to go outside and get the real stuff,” he said. 

Any research to show that this is true?

It’s not just child sex abuse experiences that are concerning to Renaud, but violent first-person sexual experiences including rape and even entirely new deviances “like having sex with monsters with three penises and blue skin”. 

Mr. Renaud has a very active imagination, it seems.

“We don’t know what effect these sexual experiences will have on the behavior of children and adults in the future,” he said.

Maybe he should put on the VR goggles, strap a device around his penis, and see what his own reactions would be.