Understanding Arizona Probation with Sex Terms

As we outlined in the first part of our series, sex offender probation needs to be revamped, as it is inherently unfair. While Castillo Law agrees that probation is an important and crucial part of reintroducing those accused of sex crimes into the community, there needs to be more consideration towards the negative impact sex offender probation has on everyone involved, including the families of probationers, and the community. We are not saying that sex crimes should go unpunished, but rather calling our probation departments, the State and the Court to action, in order to create an improved program that can benefit the community, the probationer, and the probationer’s family, with more consideration on the quality of testing and treatment and getting the probationer back into the community. Ultimately, the current mold is not (in our opinion) the most effective way to prevent recidivism.

Polygraph Testing while on Sex Offender Probation

The premise, under probation’s “containment approach” for sex offender probation, is that “there are no cures for sexual deviancies,” as stated by the manual given to probationers on sex offender terms. As such, in order to track the potential threat of a probationer, the probationer must submit to regular polygraph testing, in order for the probation officers and probation team to track their capacity for recidivism and potential threat to the community. Part of what is required of a probationer is that they must share their sexual experiences, dating back to their first sexual experience to present, any and all sexual urges, and any and all fantasies with their treatment team and at the time of polygraph testing. If they do not, it can appear as a failed polygraph test or as deceptive to the probation treatment team.

Problems with the Polygraph

It is for these reasons that polygraph testing is one of the main problems with sex offender probation. Polygraphs are not an exact science and are unreliable, and it is for these reasons that they are not admissible as evidence at a criminal trial and they are taken with a grain of salt when presented as mitigation to the State. So, why are we using them to monitor probationers? The reason polygraphs are not acceptable in Court is that polygraphs are administered with many variables at play, i.e. the polygrapher, the questions, the probation officer, etc., and every step along the way could lead the person being polygraphed to fail the test. Furthermore, probationers are interviewed by probation officers that often lack the skill set to conduct such interviews, and then they are polygraphed on the interview questions. In many cases the polygraphers are contracted by the probation department and are not necessarily independent, unbiased administrators.

Not only are the polygraphs faulty from the administrative end, probationers often suffer from conditions that have an effect on their ability to take polygraphs, yet, they are still tested. The probation department tests all individuals on sex offender probation, regardless of any individual conditions, and ultimately fail to diagnose each probationer’s needs. Even with all these potentially skewing factors, if the individual on sex offender probation fails the sexual history polygraph, it becomes the foundation for a probation violation, and a probation violation could result in going to prison. Even if the individual on sex offender probation has thoughts that were never acted upon or transgressions that happened in the past that were never charged or substantiated by fact, they could still be violated.

Even in situations where the probation department does not choose to violate a probationer, individuals on sex offender probation can be coerced into admitting some violation which can be used against them later. Usually, failed polygraphs can be used as a basis to keep the probationer from advancing in his/her probation, to remove special privileges, and often, to keep them from getting off probation at all. For example, a common failure on the maintenance polygraph is when the probationer shows deceptive answers to the question, “have you used the internet?” It is common for probationers who fail this question to lose any and all internet privileges, including internet usage for work purposes, which can cause the probationer to lose his/her job. Also, Probation Officers force probationers to accept every fact in the police report as true during polygraph testing, otherwise the probationer is threatened that they will not advance in treatment.

To some, this may sound like something out of Minority Report, where pre-crime and potential crime is prosecuted as reality, even though no offense has actually occurred or been substantiated by fact. Because of this type of thinking, our clients that are on sex offender probation view the polygraph as a bait trap, where the probation officer will ask intrusive questions, trying to get them to make statements that could incriminate them, and then subsequently showing deception on a polygraph. According to MCSC, these periodic and psychological testing “validates the veracity of statements,” but, if certain probation officers are known to sometimes falter along the line of helping or hindering, polygraphs can hardly be relied upon as validating or truthful.

In our next article, we take up the flaws of sex offender treatment and the impact this treatment has on the probationer, their family, and the community. If you or someone you know is on sex offender probation and would like to know about ways to terminate or modify their terms of probation, Castillo Law is available 24/7 at 480-206-5204.

Part 1 – Problems with probation
Part 3 – Ineffective Therapy