Testing Individuals with Pending or Filed Criminal Charges Involving Sexual Misconduct
This testing is usually done in conjunction with pre-sentence Sexual Behavior Evaluations and Risk Assessments. Such evaluations or assessments are undertaken to determine whether the client has identifiable sexual behavior problems, and to make appropriate supervision and treatment recommendations. When the Standard Range Sentence for the charged offense is a term of incarceration in excess of thirty days, the evaluation will be used to determine whether the client qualifies for a sentence of a term of community supervision as an alternative to the Standard Range Sentence of incarceration. For adults, such a sentence is noted as Special Sex Offender Dispositional Alternative or S.S.O.D.A. For juveniles, such a sentence is noted as Special Sex Offender Sentencing Alternative or S.S.O.S.A.
In the majority of these cases, attorneys refer their client to a Certified Sex Offender Treatment Provider (CSOTP). One exception may be when the attorney finds that the client is still denying the offense when it appears that the client’s assertions are not very credible, particularly in those situations in which there are few case facts in the client’s favor. While a polygraph test could be used to break through the apparent denial, that same goal can be reached during the course of the CSOTP’s evaluation process. If you are in the position of having to have your client evaluated by a CSOTP in order to make the case that your client is S.S.O.D.A. or S.S.O.S.A. eligible, it may make more sense to start with the CSOTP.
The Disclosure over the Instant Offense Examination
If the client is in complete denial of any wrongdoing, and has not been referred to a CSOTP for evaluation, a disclosure over the instant offense examination should be done. Mr. Podoll requires the offense report and/or any other information about the offense that contains all statements made by the victim(s) or complaining witness(s).
During the pre-test interview portion of the examination session, Mr. Podoll will ask the client a number of detailed questions about several forms of sexual contact the subject may have had with the victim(s) in the indexed offense and the number of instances in which the subject engaged in each contact. Any disclosures that the client makes in response to these questions will be noted in Mr. Podoll’s report on the examination. The issue targeted in testing would be whether or not the client has had any sexual contact with the victim(s) in the indexed offense that he/she has failed to disclose.
Undisclosed Victims Testing – A Historical View
Historically, an undisclosed victim’s test was essentially a Phase I test of the traditional two-phase Full Disclosure Over Sexual History Examination.
The behaviors targeted in the Phase I test were illegal sexual offense behaviors in which there was physical sexual contact with another person. In other words, the behaviors targeted were behaviors in which the test subject had sexual contact with another person without that person’s consent. This would include underage persons (unable to consent per laws relating to the minimum age different between people engaged in sexual activity); sexual contact with age appropriate unimpaired individuals without their prior verbal consent); sexual contact with age appropriate individuals who are unable to consent as a result of the ingestion of alcohol or other drug, or as a result of being asleep or unconscious; sexual contact with age appropriate individuals who are unable to consent as a result of an illness, injury, or developmental problem that results in that individual functioning at the level of an underage person.
The behaviors targeted in Phase II of the Full Disclosure Over Sexual History Examination included sexual offense behaviors in which there was no physical sexual contact with another person. These behaviors included: communication with a minor for immoral purposes (face-to-face, via the Internet, etc), exhibitionism or indecent exposure, theft of undergarments relating to sexual arousal or stimulation, Voyeurism or sexual peeping activities; use of or trafficking in child pornography; sexual contact with animals; prostitution; stalking, sexual harassment.
The full disclosure test was originally developed as a therapy tool. The full disclosure test was a post-conviction test. After sentencing had taken place, the client, although they might be concerned about how his/her therapy might be impacted if they were to disclose additional victims not known about at the time of sentencing, the subject would not have to be concerned about how what was revealed might impact some pending criminal case.
The Undisclosed Victims Test – Today
Over the past several years, prosecutors have come to want testing done on the issue of undisclosed victims prior to sentencing. As a pre-trial pre-sentencing test, the client is far more likely to fear that anything he/she reveals might be used against him/her at sentencing. In the state of Washington, this problem with juveniles can be addressed by way of having a Decker Order issued granting limited immunity to a respondent for statements made during the evaluation process. There is no use immunity for adults.
“Exploratory or Screening Exams vs. Diagnostic Exams”
An undisclosed victims test is an exploratory test since there is an absence of a known issue; that is, there is no specific information available regarding the test subject’s behavior that can be independently verified as factual or well founded. There is no specific incident that can be identified. There is no case or case facts. There is no specific allegation that has been made. There is nothing tangible that would identify the test subject as a suspect in a particular behavioral act apart from the fact that he/she has had a known allegation raised against them in regard to this behavior in the past. The target issue (undisclosed victims) in an exploratory test is not the kind of issue that a diagnostic call (Deception Indicated, No Deception Indicated, or Inconclusive) can be made on. The test results in an exploratory test are much more tentative in nature, and as a result, they should be reported as Significant Reactions, No Significant Reactions, or Inconclusive. In other words, the call made on the reactions recorded to test questions relating to the target issue of undisclosed victims would be in terms such as "were characteristic of lying or of deliberately concealing pertinent information", "were characteristic of truthfulness", "were not consistent enough to give any clear indication of truthfulness or lying." In practice with sex offender testing, it is not uncommon to find diagnostic calls being made on undisclosed victims tests. Mr. Podoll has come to prefer not making a diagnostic call on any exploratory test because it would be difficult to justify in view of available research data.
The Undisclosed Victims Test Today – A Problem and a Solution
A problem that can occur in undisclosed victims testing is the situation in which the client is suspected of withholding information about what took place with the victim in the indexed offense. Because it is sometimes the case that a victim will fail to disclose everything about what took place in the offense, even in those cases in which there is no apparent discrepancy between the victim’s account of the offense and the client’s account, there is some risk that the client may be withholding pertinent information. This is a problem because a client withholding critical information may flunk an undisclosed victims test even when he/she has no other victims. In Polygraph News & Views (vol. 10; number 3) examiner/writer James Wygant states “If he is lying about what he has been charged with, he will presumably flunk the test on undisclosed victims just because he is withholding material information that is critically close to the issue in the examination”.
As noted above, when the subject is in complete denial, Mr. Podoll will not do a test on undisclosed victims, but will rather recommend a disclosure over the instant offense test.
Because there is the possibility that the subject may fail to pass a test on undisclosed victims as a result of the information being withheld relative to the victim(s) in the indexed offense, Mr. Podoll recommends that two separate tests in a single session be completed even in those cases in which the client is denying some, but not all of the alleged behaviors.
Two Tests - One Session: Greater accuracy in exploring whether the subject has any undisclosed victims
Test A will be a Disclosure over the Instant Offense Examination. Test B will be an Undisclosed Victims Examination. As noted above, during the pre-test interview, Mr. Podoll will ask the client a number of detailed questions about several forms of sexual contact the subject may have had with the victim(s) in the indexed offense and the number of instances in which the subject engaged in each contact.
Later during the pre-test interview, Mr. Podoll will ask the client about his/her involvement in behaviors targeted in Phase I of the traditional full disclosure over sexual history examination; that is illegal sexual offense behaviors in which there is physical sexual contact with another person. (NOTE: With some juveniles, the issue may be narrowed to sexual contact with younger individuals or to sexual contact with individuals in a specific age range.)
In Test A, Mr. Podoll targets the issue of undisclosed sexual contact with the victim(s) in the indexed offense. In Test B, Mr. Podoll targets undisclosed illegal sexual behaviors in which there is physical sexual contact with another person.
Two Tests – One Session Test Results; Conclusions
There is only one combination of test outcomes that makes drawing a conclusion about undisclosed victims problematic. That test outcome is a failure on both tests A and B. When this outcome is obtained, little more can be concluded other than the client is withholding information about his/her sexual contacts with others.
If the subject passes both test A and B, there is strong evidence that the subject has no undisclosed victims. If the subject fails test A and passes test B, there is still strong evidence that the subject has no undisclosed victims. If the subject passes test A and fails test B, there is strong evidence that the subject has undisclosed victims.
Two Tests – One Session; Some Caveats
Caveat One: While Mr. Podoll believes that conducting two tests in one session in this fashion seems the best way to obtain accurate information, however, the evidence that this process is more effective in accurately determining whether a client has undisclosed victims or not is anecdotal in nature being based on Mr. Podoll’s experience in using this process with a limited number of CSOTPs over a seven-year period. Although both Test A and Test B are single-issue examinations using accepted test formats, Mr. Podoll knows of no research in which two tests of this nature have been done in a single session. Only time will tell whether any future research might support Mr. Podoll’s belief that this process is more effective in determining whether or not the client has undisclosed victims.
Caveat Two: Not all clients will be able to complete two tests in a single session. Some clients are simply unable to attend to a process that is likely to take more than two and one-half hours. If there is any reason to believe that a particular client may not have the physical and/or emotional resources to finish both tests within a two and one-half hour period, arrangements will have to be made to have the client take a break long enough to refresh him or herself before completing testing either the same day or on a different day. If testing is to be completed on a different day, there will be an additional $100 fee charged, or a total of $400.
Caveat Three: This process does not address any of those behaviors encompassed in Phase II of the traditional full disclosure over sexual history examination.
The Traditional Full Disclosure Over Sexual History Examination
At this time, Mr. Podoll has chosen not to do contract work for agencies with oversight on individuals after sentencing. If the client is incarcerated post-sentencing, is on community supervision, or is on parole, Mr. Podoll would not be permitted to conduct the traditional full disclosure over sexual history test on your client without approval from the agency responsible for oversight of your client.
“Dry Run” sexual history examinations
Because prosecutors want testing done on the issue of undisclosed victims prior to sentencing, an attorney may well be concerned that the client may reveal information that might be used against him/her at sentencing. In the state of Washington, this problem with juveniles can be addressed by way of having a Decker Order issued granting limited immunity to a respondent for statements made during the evaluation process. There is no use immunity for adults.
Because of this concern, an attorney may well want to have the client undergo a sexual history exam prior to referring the client to a Certified Sex Offender Treatment Provide (CSOTP) or licensed psychologist for a Special Sex Offender Sentencing Alternative (S.S.O.S.A.) or Special Sex Offender Dispositional Alternative (S.S.O.D.A.).
Mr. Podoll will only do a sexual history examination for a Certified Sex Offender Treatment Provider (CSOTP) or licensed psychologist.