Juvenile
Sex Offender Treatment, Polygraph Testing and an Undiagnosed Mental
Health Issue: An Unusual Case Study of “Thinking Outside the Box”
After much negotiation, the prosecutor
offered a regular indeterminate probation so long as my client first
successfully completed a sex offender treatment program (SOTP). This
meant that my client could get his juvenile record sealed at age 19 and
would not have to register as a sex offender. If my client was
unsuccessful with the SOTP, then he would receive a determinate sentence
which meant he could be on probation or sent to the Texas Juvenile
Justice Department (formerly TYC) for a number of years with transfer to
adult prison, could never get his records sealed and would probably
have to register as a sex offender until age 28. The difference in
possible outcomes was huge. I was skeptical of the deal because I knew
that polygraph testing at best is only about 85 percent accurate, but it
was also the only way the prosecutor would offer my client a path to
receive an indeterminate probation, and ultimately it was my client’s
decision. My client and his parents agreed to accept the prosecutor’s
offer.
The first part of the SOTG consisted of
writing down a complete sexual history, revealing all sexual conduct
with all people that the teenager had had up to that point in his life.
The polygraph testing (i.e. lie-detector test) was then used to confirm
whether or not he was being honest about revealing his complete
history. After being tested, the forensic polygraph examiner (FP)
claimed that my client’s examination indicated deception, that he was
not being honest. A later examination resulted in an inconclusive
result, and the FP claimed that my client was deliberately trying to
thwart the process by taking deep breaths prior to answering the
important questions. I retained a private FP to administer the test and
the result also came back inconclusive. I was very concerned for my
client because I and his family both believed that their son was being
truthful.
The consequence for not successfully
completing his SOTP would be catastrophic to his future. By now, the
prosecutor wanted to schedule a court hearing to have my client
adjudicated with a determinate sentence.
I questioned my client’s father about
whether his son had ever been diagnosed with a mental health issue. He
then told me that seven years earlier his son had been diagnosed with
generalized anxiety disorder (GAD), but that he had not taken medication
for it for several years. I knew that GAD could affect polygraph
testing. According to Dr. James Allan Matte in his book Forensic Psychophysiology Using the Polygraph,
“the continued state of heightened anxiety in individuals with GAD results in chronic arousal of the autonomic nervous system… The FP must be cautious when interpreting such profiles due to this chronic arousal which cannot be directly attributed to the FP’s questioning but rather is a reflection of general nervous tension”.
I also suspected that my client’s mental
health issue was deeper and more complex. I knew that individuals with
Asperger’s Syndrome, now considered part of the Autism Spectrum
Disorder (ASD), are often first misdiagnosed with a variety of
illnesses, including GAD, bipolar disorder, etc. In fact, autism
impacts the autonomic nervous system the same way as GAD and as a result
it adversely impacts and skews the results of polygraph testing. With
either illness, it is impossible for a polygraph examiner to prove that a
failed test is the result of actual deception rather than the illness
itself.
Based on my client’s body language, lack
of eye contact and mental health history and also that his father was
an engineer, I suspected my client might have Asperger’s syndrome (i.e. High Functioning Autism). I suggested
that he take an online test to see if he might fall within the range.
The test indicated that he probably did have Asperger’s. I recommended
that he undergo a formal evaluation by a trained psychologist. The
process took two weeks, and the psychologist confirmed my suspicion that
my client did in fact have Asperger’s and also agreed that the illness
adversely affected polygraph testing.
I furnished the results of the
psychological evaluation to the prosecutor and to the probation
department. I requested that polygraph testing be waived in my client’s
SOTP and that he be placed on an indeterminate probation in his home
county. It took some time to persuade the prosecutor to do the right
thing. Initially, he argued that autism did not affect polygraph
testing and then made the incredulous claim that there were in fact many
juveniles with autism in his county’s SOTP that were passing
polygraphs. Next, he argued that he never would have made the offer in
the first place had he known my client had autism. I told him that
would be discrimination against the disabled. I had already consulted
with a civil rights attorney that was prepared to file a federal lawsuit
against the county government if the prosecutor persisted in his course
of action to have my client adjudicated for a determinate sentence.
Finally, ten months after I was hired
and three months after my client was diagnosed with Asperger’s, the
prosecutor relented and agreed to an indeterminate probation until age
18, defer the decision regarding sex offender registration, SOTP without
polygraph testing and to transfer the probation to my client’s home
county.
My client’s SOTP counselor confirms that
he is doing well in his treatment program. My client now understands
himself better and can seek out professional help in learning to deal
with some of the cognitive deficits of Asperger’s.
I
was blessed to have been able to use my unique knowledge and
understanding of juvenile law and psychology to save a client from a
painful and uncertain future. I am also certified in juvenile law by
the Texas Board of Legal Specialization since 2004. I doubt if any other juvenile
attorney could have obtained the same result.
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