Massachusetts Court Permits Evidence of Sex Offender’s Lack of Participation in Treatment, but Not His Refusal to Participate, to Be Used at Commitment Hearing

Commonwealth v. Hunt, 971 N.E.2d 768 (Mass. 2012)

The Massachusetts Supreme Judicial Court has held that a prisoner’s refusal to participate in sex offender treatment programs that require a waiver of confidentiality does not violate his Fifth Amendment privilege against self-incrimination, but does violate fundamental fairness embodied in the therapist-patient privilege. A prisoner’s refusal to participate in sex offender treatment may therefore not be admitted into evidence in a civil commitment proceeding or used by evaluators to formulate an opinion as to whether the prisoner is a sexually dangerous predator (“SDP”), but his simple failure to receive any treatment may be so used.

In 1990, the defendant pled guilty to three charges of raping a child, the daughter of his live-in girlfriend, and an unrelated burglary charge, and was sentenced to 8-15 years in prison. Several times while in prison, the defendant was offered sex offender treatment. As a condition of treatment, however, he was required to sign an agreement allowing the therapist to provide information concerning his progress to the Department of Corrections and the parole board. While temporarily committed to the Massachusetts sex offender treatment center awaiting a hearing on the civil commitment petition, the defendant was again offered treatment but was required to sign a statement acknowledging that anything he said or disclosed in discussion with his therapist might be reviewed by qualified examiners to determine whether he was a SDP. The defendant refused the treatment arguing that admission of that evidence would violate his privilege against self-incrimination.

At trial in 2008, the Commonwealth offered three experts who testified that the defendant was properly diagnosed with pedophilia and was likely to offend again. The defendant offered three psychologists who testified that the defendant may or may not meet the definition of pedophilia, but was not likely to sexually re-offend. Two of his experts testified that he did not have a sexual abnormality and one did. Before and during trial, the defendant moved to bar any reference to his refusal to participate in treatment, arguing that information concerning his refusal would violate his Fifth Amendment privilege against self-incrimination. The trial court denied his motion and a jury thereafter found him to be a SDP.

The Massachusetts Supreme Court relied on the United States Supreme Court case of McKune v. Lile, 536 U.S. 24 (2002), in finding that no mandatory penalty arose in Massachusetts from a prisoner’s refusal to participate in treatment. In McKune, the U.S. Supreme Court held that an incriminating statement may be deemed “compelled” when the penalties for the defendant’s refusal to incriminate himself may be so severe that they are capable of coercing incriminating testimony. The Supreme Court specifically found in that case, however, that a convicted prisoner’s participation in a sexual abuse treatment program where he was required to complete a sexual history form detailing prior sexual activities regardless of whether such activities constituted uncharged crimes was not compelled even though his refusal to participate resulted in the automatic curtailment of his visitation rights and other prison privileges, and required transfer to a maximum security unit. Here, the Massachusetts Court found that an offender faces only the possibility that if he refuses to participate, the Commonwealth may offer such refusal in evidence at a future SDP hearing or an expert may use his refusal to support his opinion that the defendant is a SDP. Since the defendant’s silence was not being used against him in a criminal proceeding, his silence was insufficient alone to support a SDP finding. Instead the Commonwealth was merely giving evidentiary value to his refusal. His 5th Amendment right against self-incrimination was therefore not violated.

Nonetheless, the Massachusetts Supreme Court went on to recognize that, under the common law, evidence that a defendant has refused sex offender treatment would constitute unfair prejudice. The Court pointed to the legislature’s recognition of the importance of confidentiality in communications between patients and psychotherapists through its enactment of an evidentiary privilege. Citing the United States Supreme Court’s decision in Jaffee v. Redmond, 518 U.S.1 (1996), the Massachusetts Court found that the waiver of confidentiality during sex offender treatment poses a substantial risk of impeding the development of an atmosphere of confidence and trust, chilling the candor of communication and diminishing the likelihood of successful treatment. If the Commonwealth provided treatment without the requirement of a waiver of confidentiality, the inference a jury might derive from his refusal to participate would be fair and reasonable. But the Court drew a distinction between evidence that a defendant “refused” treatment, which might prejudice a jury, and evidence that the defendant “did not receive” treatment. The Court recognized that the lack of treatment itself, either because treatment was simply not offered or because the defendant refused treatment, was directly relevant as to whether the defendant might re-offend and thus meet the definition of a SDP. Therefore, the Court held that evidence that a defendant did not receive sex offender treatment is admissible, but it is error to admit evidence that a defendant refused treatment when he could receive such treatment only by waiving confidentiality and the therapist-patient privilege.

Found in DMHL Volume 31 Issue 6