If you are a lawyer who has been contacted by a person accused of child abuse, sexual assault, elder abuse, or any other special assault, you face issues not present in other kinds of cases. Here are some things we suggest you consider in addition to the points we’ve made about Special Assault Defense.
Can a sexual deviance evaluation help an innocent sex crime suspect avoid prosecution?
It depends, of course, on the prosecutor, and probably also on the strength of the case. (Here we assume the evaluation would not be admissible at trial. Its sole function would be to influence the prosecutor’s decision whether to charge.)
Sexual deviance evaluations are generally designed for people already known to suffer from deviance. They assess the extent of the deviance, determine appropriate treatment, and assess the risk of not incarcerating the client during treatment. Sexual deviance evaluations are not generally designed to determine whether the client is free of sexual deviance.
Accordingly, the most one can get from a competent evaluation is a heavily qualified clean bill—something like, “While sex offenders do not all manifest any distinguishing psychological traits, we have not detected in Mr. X any of the traits, behaviors, test results or history most often seen in sex offenders.”
How can a lawyer get sexual deviance evaluation and treatment for an offending client without increasing the client’s legal jeopardy?
Often a sex offender wants treatment for his deviance. He may want it because it will improve his prospects in the legal system, or for healing, or for both these reasons.
Getting sexual deviance evaluation and treatment is perilous. The process usually includes taking the client’s complete sexual history. Mandatory reporting laws generally require the persons who provide sexual deviance evaluation and treatment to report to the authorities any child abuse offense that comes to their attention. That could lead to the client’s facing a new charge.
If the police are already investigating your client for a child sex offense, most of these providers would not construe the law to require them to report anything they learned about that offense from your client. But often sex offenders are not caught the first time. If your client discloses to the evaluator another child sex offense, the evaluator will probably be obliged to report it.
There is another complication. Sex offenders often lie to their lawyers—and even to themselves—about the extent of their sexual misconduct. Sexual deviance evaluators often get more truthful sexual histories from them. A lawyer cannot rely on his client’s assurance that this time was the only time.
What is the lawyer to do?
Talk to the evaluation and treatment providers under consideration. Ask each how he or she reacts when it appears a client is about to identify other victims. Some will say to the client, “It sounds like we should stop for the day, and you should talk to your lawyer about this before we resume.” Others press on, get the victim’s identity, and then report to the police; they believe the client should reveal the complete truth without regard for legal consequences.
Talk to the providers also about how specifically other victims must be identified. Does the provider need to know the full identity of other victims? Is it enough for the client to say, for example, “It was a junior high school girl who lived in my neighborhood?” If the provider does not learn enough of the identity for the police to figure out the rest, does he or she construe the law to require him or her to make any report? And will the client suffer even if the provider does make a report with meager identification of the victim?
After these discussions, a lawyer may be able to choose an evaluator and treatment provider who will not expose the client to unnecessary legal risk.
Can a lawyer with an offending client safely leave it to the evaluator to get a full report of the client’s deviance?
We don’t think so.
When the client meets the evaluator, he needs to be ready to tell the whole truth about his deviance, no matter how ugly it is. Otherwise, he may minimize his deviance so much that he will appear a poor treatment candidate. He may also fail the polygraph examination most evaluators require.
A lawyer helps a client prepare to tell the whole truth to the evaluator by asking the client first to tell the whole truth to the lawyer. It may be difficult for the lawyer to elicit the details while maintaining a non-judgmental demeanor. Doing this can make the difference, though, in whether the client gets a favorable evaluation and a sentence that doesn’t rely on decades of imprisonment to protect the public.