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A Ninth Circuit U.S. Court of Appeals opinion Thursday could make it harder to force convicted sex offenders into certain forms of state-mandated therapy. The court reversed a Montana district court ruling against Lawrence Antelope who was convicted of possessing child pornography in a sting operation. Given probation and ordered to undergo treatment, Antelope refused to participate in “autobiographical” therapy unless he was promised he would not be prosecuted for past crimes. As Antelope appealed the therapy order, his failure to comply caused him to incur additional penalties in what Ninth Circuit Judge M. Margaret McKeown described as a “never-ending loop tape” of appeals and prison sentences. McKeown, backed by Judge Ronald Gould and Senior Judge Melvin Brunetti, ruled Antelope had been unjustly denied his Fifth Amendment rights against incriminating himself. Reversing a Montana district court’s ruling, McKeown found that Antelope could not be forced into the therapy or punished for refusing to undergo it. “Antelope’s successful participation in [the therapy program] triggered a real danger of self-incrimination, not simply a remote or speculative threat,” McKeown wrote. “We have no doubt that any admissions of past crimes would likely make their way into the hands of prosecutors.” Federal defender Anthony Gallagher represented Antelope in the case. U.S. Attorney William Mercer represented the government. Neither attorney could be reached for comment. Antelope’s legal troubles began after he joined a Web site advertising “preteen nude sex pics” and began corresponding with an undercover law enforcement agent. He ordered a child pornography video over the Internet and was arrested after federal agents delivered the video. Antelope pleaded guilty to possessing child pornography in violation of 18 U.S.C. � 2252A(a)(5)(B). Initially sentenced to five years’ probation, Antelope was required to participate in Montana’s Sexual Abuse Behavior Evaluation and Recovery program, or SABER. The program required him to submit to random polygraph tests. Concerned that he would be forced to incriminate himself, Antelope challenged the requirement. A district judge assured him that his confidences would be protected as privileged information between him and his counselor. Antelope appealed. While his appeal was pending, the district court: revoked Antelope’s probation because he would not submit to polygraph tests, ordered six months of electronic monitoring and warned he would be jailed. Antelope appealed again and asked for clarity on the issue. Meanwhile, he failed to complete a sexual history autobiography assignment and a polygraph test in which he was asked to reveal his full sexual history. According to a counselor’s testimony, Antelope was told that any past criminal offenses he might reveal in treatment could be released to authorities. Antelope was given 30 months in prison, which was later lowered to 20 months followed by three years of supervised release. After his prison term, Antelope again expressed a desire for treatment, but would not reveal his sexual history without immunity from prosecution. He was sentenced to another 10 months in prison, followed by 26 months of supervised release under the same conditions. It was an appeal to that order that brought his case before the Ninth Circuit for Thursday’s ruling. A California Department of Corrections spokeswoman said it may be “premature” to gauge the effect the ruling may have on the state’s treatment programs for sex offenders. Attorneys for the department could not be reached for comment. “I was under the impression that when you are in a confidential situation with a psychologist or a psychotherapist that that information is confidential,” said spokeswoman Margo Bach. But such disclosures aren’t protected, said Santa Clara Deputy Public Defender Andrea Flint, whose clients include graduates from California’s Sexually Violent Predator program at Atascadero State Hospital. Unlike other convicted criminals, sexual offenders in California are not offered Fifth Amendment protection, she said. “District attorneys often use reports from doctors, psychologists and individuals involved in the treatment with the client,” Flint said. Flint hailed Thursday’s ruling, saying she hoped it could be used “in breaking down the barrier” that has kept convicted sex offenders from Fifth Amendment protections. The case is U.S. v. Antelope, 05 C.D.O.S. 745.

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