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Inmates warned on sex therapy

Records can be used later in commitment

By Michele Kurtz, Globe Correspondent, 7/28/2002

Convicted sex offenders are being advised by their lawyers not to seek treatment while in prison for fear they might reveal things in therapy that could keep them locked up for life, according to attorneys and prosecutors who handle such cases. 

 

Since 1999, when legislators passed a new law designed to keep the state's most dangerous sexual predators behind bars, some defense lawyers have been warning sex offenders not to take part in therapy while in prison because treatment records can be used by prosecutors when they ask that a convicted sex offender be deemed ''sexually dangerous.''

If a judge or jury agrees, the offender can be kept indefinitely in a medium-security treatment center, long after he has completed his original criminal sentence.

''I actually give the advice, `Shut up,' to my clients,'' said Boston lawyer John Swomley, who represents sex offenders whom prosecutors want ''civilly committed'' to a treatment center. ''By and large, they use what you say in therapy against you. And if you don't talk in therapy, they say that because you don't talk in therapy you're still sexually dangerous. So you're damned if you do, and you're damned if you don't.''

The predicament raises questions about whether a law aimed at keeping dangerous sex offenders in prison has instead kept them from treatment that some observers believe could prevent future attacks. But prosecutors say the information gleaned from therapy reports is critical in assessing whether a sex offender such as Paul Leahy, the convicted rapist accused of fatally stabbing a woman at a Bridgewater rest stop this month, would pose a threat if released. Leahy refused treatment while in prison for rape.

In the wake of Leahy's latest arrest, a handful of lawmakers last week proposed changes that would significantly broaden prosecutors' authority to seek civil commitments. Under the plan, prosecutors could petition judges to keep behind bars inmates who are in prison on a conviction that is not sex-related if they have a history of sex offenses.

Plymouth District Attorney Timothy Cruz, who helped draft the proposal, had tried to have Leahy deemed a sexually dangerous person. But he expected a judge to refuse because Leahy's most recent crime - accosting a person of the opposite sex - is not among the offenses that make an offender eligible for civil commitment under the law.

The proposed legislation would greatly expand the list of offenses that automatically trigger a civil commitment review by district attorneys.

''I am infinitely more interested in protecting women and children from sexually dangerous persons,'' said state Representative Stephen Tobin of Quincy, who sponsored the 1999 civil commitment law. ''The public benefits by virtue of using all available information in determining a person is sexually dangerous, as opposed to any questionable benefit that might be claimed by the offender.''

Researchers and politicians have long debated whether sex offenders can be effectively treated. Studies on the subject are divided, but few specialists believe a sex offender can be ''cured.'' Rather, treatment often focuses on teaching offenders how to avoid a relapse, an approach similar to those used in treating alcoholics and substance abusers, said Dr. Robert D. Miller, a professor of forensic psychiatry at the University of Colorado, who formerly ran treatment programs in the Wisconsin prison system.

It's not clear whether more sex offenders are rejecting treatment as a result of the 1999 law and their lawyers' advice, because the Department of Correction does not know how many of the 2,500 people imprisoned in Massachusetts for sex offenses are currently undergoing therapy, according to spokesman Justin Latini. 

But lawyers and district attorneys say they believe more offenders are refusing treatment because of warnings from their attorneys.

''I think I would be hard-pressed to ever advise a [sex offender] client to get involved in therapy, given that it's not confidential,'' said Stan Goldman, director of mental health litigation for the Committee for Public Counsel Services, which provides lawyers for poor defendants.

Under the civil commitment law - revived in 1999 after an earlier version was repealed in 1990 - the prison system must notify a district attorney six months before a convicted sex offender is to be released from prison. Prosecutors can then file a petition alleging the offender is sexually dangerous and is prone to strike again.

After a trial, those found to be sexually dangerous are committed to the Massachusetts Treatment Center in the Bridgewater corrections complex for a period ranging from one day to life. Every year, people who are civilly committed can petition for a new trial in hopes of being released. So far, under the 1999 law, 21 sex offenders have been civilly committed; none have been released thus far.

Months after the law took effect, the Correction Department changed the form it had required sex offenders in treatment to sign waiving confidentiality, making it clear that their prison therapist can share information from counseling with the district attorney, who can later use it in civil commitment proceedings. The information has also been used by the state Parole Board and by prison officials in changing an inmate's security level.

In response to the new form, an agency that represents prisoners sent sex offenders a letter of caution. ''Signing this form is dangerous. In many or most cases, the risks may outweigh any benefit,'' Phillip Kassel, a staff attorney with Massachusetts Correctional Legal Services, wrote in a two-page memo dated Jan. 23, 2000. Kassel laid out the potential legal pitfalls of treatment, while noting that refusing it has consequences as well.

''You may regret losing the opportunity to genuinely benefit from treatment and improve as a human being,'' Kassel wrote.

Treatment is strictly voluntary. The prison system identifies inmates who qualify for a four-phase treatment program, but the prisoners themselves decide whether to pursue it. Refusing to take part carries a cost. Those who shun treatment are labeled ''at risk'' of committing more sex crimes, according to Correction Department documents, and are put at the bottom of lists for inmate job assignments. They're also ineligible for work release programs in the community.

Sex offenders who seek treatment and are accepted into the program begin at one of four facilities. As they progress, they end up at the treatment center in Bridgewater for the most intensive phase of therapy. There, they participate in group counseling and refine their plans for recognizing and avoiding a ''relapse,'' said Dr. Barbara Schwartz, a forensic psychologist who until July 1 was the treatment center's clinical director.

Normally, in criminal cases, prosecutors do not have access to a defendant's psychiatric records unless he makes his state of mind an issue at trial. But in proceedings to determine sexual dangerousness, which is a civil process, psychiatric records are routinely used to examine the offender's state of mind and whether he is likely to prey on more victims.

For those who think some sex offenders stand to benefit from therapy, the question of whether to seek treatment is a particularly troubling predicament. ''I believe treatment can be helpful,'' said Joseph Balliro Sr., president of the Massachusetts Association of Criminal Defense Lawyers. ''But I can't advise in good faith a client to participate, incriminate himself, and with the temper of these times, face life in jail.''

This story ran on page B1 of the Boston Globe on 7/28/2002.
© Copyright 2002 Globe Newspaper Company.