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Lawrence antelope ordered “Preteen Nude Sex Pics” from the Internet in Missoula, Mont., only to be arrested by federal undercover agents for buying the contraband child pornography. Antelope received probation and court-ordered therapy. That’s when his real troubles began. The therapy program, like many across the country, required Antelope to admit his sexual history, confessing any past behavior even if it might include illegal acts, and to undergo a polygraph test to verify it. The only problem: Antelope had no immunity protection for any admissions he made, and the probation counselor was required to report any criminal offenses disclosed during the program. Without immunity, Antelope refused to cooperate in the therapy, known as SABER, or Sexual Abuse Behavior Evaluation and Recovery Program. His probation was revoked and he spent 20 months in prison. After unsuccessful challenges of the probation terms-claiming they violated his Fifth Amendment right against self-incrimination-Antelope left prison with orders to complete three years’ probation with the same therapy requirement. Again he refused to disclose his past without immunity protections, and again his parole was revoked and he went back to prison. A ‘loop tape’ The 9th U.S. Circuit Court of Appeals recently stepped in. “Antelope’s case history reads like a never-ending loop tape,” wrote Judge Margaret McKeown. In the first ruling of its kind, a 9th Circuit panel vacated his prison sentence for parole violation, recognizing Antelope’s Catch-22 predicament. U.S. v. Antelope, No. 03-30334. McKeown said that although the disclosures “may serve a valid rehabilitative purpose, they also may be starkly incriminating, and there is no disputing that the government may seek to use such disclosures for prosecutorial purposes.” Anthony Gallagher, the federal defender in Montana, called the decision extremely significant because his office deals with a substantial number of sex offense charges on Indian reservations. Antelope is an Arapaho Indian from Wyoming who was attending college in Montana when he was arrested. His parole has been revoked four times in his efforts to pursue the Fifth Amendment claim. Gallagher said he has also heard from defense lawyers in New York, Pennsylvania and California who think the ruling will help their clients as well. “This is a first,” said David Fermino, a federal public defender in San Francisco who has had six or seven clients facing similar therapy requirements, which the appeals court has now called coercive. “The kind of questions asked in Antelope are considered the standard of care in sex offender treatment,” Fermino said. “They must attend therapy and take a lie detector test. They have no protection from future prosecution,” he said. “If you answer the questions and [any potential criminal behavior] is still within the statute of limitations, you may be charged,” he said. The prosecutor in Antelope’s case, Marcia Hurd of Billings, Mont., declined to comment on the ruling, as did a spokesman for the U.S. Department of Justice in Washington. U.S. District Judge Donald W. Molloy of Missoula, Mont., said at Antelope’s original sentencing that patient-counselor privilege would probably protect any statements. But Roger Dowty, Antelope’s counselor at the sex treatment program, testified that counselors have a legal obligation to turn over information about offenses involving any victims below 18 years of age. Montana state law requires a counselor to provide authorities with that information, as do a number of states, according to Fermino. “We have no doubt that any admissions of past crimes would likely make their way into the hands of prosecutors,” McKeown wrote. “Dowty made clear that he would turn over evidence of past sex crimes to the authorities,” she wrote. Fermino described the case as an example of a national push by probation and the Department of Justice for mandatory disclosure of sexual history during probation in child porn and molestation cases.

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