When legal rights
and treatment conflict
BY CYNTHIA CALKINS, PHD • JOHN JAY COLLEGE OF CRIMINAL JUSTICE, AND
ROBERT A. BEATTEY, JD • GRADUATE CENTER AT CITY UNIVERSITY OF NEW YORK
In 2001, Martin Roman was convicted of sexually assaulting his daughter and was ordered by the Pennsylvania Depart-
ment of Corrections to participate in sex offender treatment.
Appealing his conviction, Roman maintained his innocence,
aware that admitting to the crime could be used against him in
his appeal. Pennsylvania’s sex offender treatment program requires an admission of guilt as a prerequisite to treatment. Because Roman had denied his sex offenses, he was not allowed
into the treatment program. He was later denied parole on the
basis of having refused treatment.
Another case, Firth v. Shoemaker, also centered on the
admission of crimes as a prerequisite for treatment. Scott
Firth’s probation was revoked and he was resentenced to an
indeterminate period for violating his probation after he was
released from detention for molesting his minor daughter over
an eight-year period. In Firth’s habeas action, the district court
construed him to be arguing that the Colorado Department
of Corrections (CDOC) had violated his Fifth Amendment
right against self-incrimination by requiring him to admit guilt
before he could participate in a sex offender treatment program.
On appeal to the 10th Circuit, Firth argued that CDOC
employees were requiring him to fabricate fantasies, daydreams
and flashbacks in order to progress with treatment.
Should treatment programs require sex offenders to admit
their offenses as a condition of entry? These cases suggest that
convicted offenders who deny their offenses may be denied
treatment, which may then affect their parole opportunities. In
asserting their Fifth Amendment right against self-incrimination,
Roman and Firth argued that they were forced to choose between
admitting their guilt as required by the treatment program or
relinquishing their opportunities for release. While the 3rd Circuit
acknowledged that Roman was faced with an exceptionally
difficult decision, it found that denial of parole did not constitute
compulsion necessary to support a Fifth Amendment claim
(Roman v. DiGuglielmo). The 10th Circuit found that Firth had
failed to establish that he was forced to make false statements,
therefore leaving unresolved the legal question presented.
While denial is common among sex offenders and nearly all
“Judicial Notebook” is a project of APA’s Div. 9 (Society for the
treatment programs in the United States require some form of
offense disclosure for successful program completion (McGrath
et al., 2010), it is not altogether clear whether overcoming
denial is important from a risk or treatment perspective. Meta-
analyses reveal that sex offenders who deny their offenses are no
more likely to re-offend and thus consider denial a “potentially
misleading risk factor” (Hanson & Morton-Bourgon, 2005). Ware
and Mann (2012) argued that the “overemphasis” on a defendant’s
taking responsibility is not evidence-based and that insisting on
a confession can damage the therapeutic relationship, resulting
only in offenders telling the story that they think others want to
hear. Levenson (2011) suggested that denial should be considered
part of the change process and that providing a therapeutic
environment that promotes honesty is better than simply refusing
treatment to categorical deniers. From a treatment and risk-
management perspective, the same risk factors for re-offense
could be addressed whether the offender admits guilt or not.
The U.S. Supreme Court has recognized that the court-
imposed requirement to be truthful in treatment ordered as a
condition of probation does not nullify the right to assert the
Fifth Amendment (Minnesota v. Murphy, 1984). As a result, it
is likely that cases like Roman and Firth will continue to arise.
Clinicians’ adoption of evidence-based practices, which do
not necessarily call for a participant’s admission of guilt, could
relieve demand upon limited court resources without any cost
to the therapeutic endeavor. n
Psychological Study of Social Issues).
Hanson, R. K., & Morton-Bourgon, K. E. (2005). The characteristics of
persistent sexual offenders: A meta-analysis of recidivism studies. Journal of
Consulting and Clinical Psychology, 73, 1154–1163.
Levenson, J. S. (2011). “But I didn’t do it!”: Ethical treatment of sex
offenders in denial. Sexual Abuse: A Journal of Research and Treatment, 23,
McGrath, R. J., Cumming, G. F., Burchard, B. L., Zeoli, S., & Ellerby,
L. (2010). Current practices and emerging trends in sexual abuser
management: The Safer Society 2009 North American Survey. Brandon,
VT: Safer Society Press.
Ware, J., & Mann, R. E. (2012). How should “acceptance of
responsibility” be addressed in sexual offending treatment programs?
Aggression and Violent Behavior, 17, 279–288.