Bennett v. Bigelow
| Decision Date | 25 November 2016 |
| Docket Number | No. 20140680,20140680 |
| Citation | 2016 UT 54,387 P.3d 1016 |
| Parties | Brendt Thomas Bennett, Appellant, v. Alfred Bigelow, et al., Appellee. |
| Court | Utah Supreme Court |
Linda M. Jones, Troy L. Booher, Erin B. Hull, Salt Lake City, for appellant.
Sean D. Reyes, Att'y Gen., Brent A. Burnett, Sharell S. Reber, Asst. Att'ys Gen., Salt Lake City, for appellee.
Introduction
¶ 1 Brendt Bennett claims that his Fifth Amendment rights were violated when he was required to disclose his entire sexual history, including any uncharged sexual crimes, as part of his sex offender treatment during parole. He refused to make these disclosures and his parole was revoked, requiring him to return to prison to potentially serve the remainder of his indeterminate six year to life sentence. The district court dismissed Mr. Bennett's Fifth Amendment challenge to the parole revocation at summary judgment. We hold that Mr. Bennett has established that genuine issues of material fact exist that preclude the grant of summary judgment and reverse.
¶ 2 Mr. Bennett pleaded guilty to one count of rape of a child, a first-degree felony, in August 2000. The district court sentenced him to an indeterminate sentence of six years to life. In 2007, after Mr. Bennett successfully completed an in-prison sex offender treatment program, the Board of Pardons and Parole (Board) granted him his first opportunity to be released on parole. He was paroled to the Bonneville Community Correctional Center (BCCC). As a condition of parole, Mr. Bennett was to successfully complete the BCCC sex offender program. The Department of Corrections was instructed to immediately notify the Board if Mr. Bennett was removed from the program.
¶ 3 As part of his first attempt in the BCCC program, Mr. Bennett was required to give a complete sexual history, including any past charged or uncharged sex offenses. He was given several assignments and other requirements in order to successfully complete the BCCC program, including treatment journals, psychosexual testing, an autobiography, and a polygraph test. One such assignment was to complete an "Offense Report." This report had two purposes: The instructions to the report "encouraged [the offender] to complete the assignment in a detailed way." As part of this report, the offender had to complete a "Victim Form" and a "Victim Narrative."
¶ 4 The instructions to the Victim Form stated that the offender must complete a separate form for "[e]very person with whom [the offender] had sexual contact [before the offender was 18 years of age] who was 3 years or more [ ] younger than [the offender]" as well as "[e]very person under 18 with whom [the offender] had any sexual contact" and "[a]ny person with whom [the offender] had non-consensual sexual contact" after the offender was 18 years old. The form itself required the offender to provide the victim's name, age, and sex as well as the offender's age at the time of first contact. The offender was then required to indicate the type and amount of sexual contact with the victim. The final part of the form required the offender to describe the month and year of the first and last sexual contact of any kind with the victim. The form did not indicate that the person completing it should limit his or her responses in any way.
¶ 5 The instructions to the Victim Narrative required the offender to "[d]escribe all the activities ... that are listed and counted on the victim form" and suggested that the narrative "[m]ay be several pages for each victim." There were nine specific requirements to a victim narrative: first, the offender was required to provide the victim's name or some other means to identify the victim. The instructions warned the offender to "not divulge the last names of victims to the group" and to "[u]se only the first name to protect your victim[']s identities." If the offender did not know or could not recall the name, the offender should "use some other means to identify the victim, such as ‘My sister's 8-year[-]old friend.’ " Second, the offender had to describe how the victim may have been related to the offender and how the offender became acquainted with the victim, with examples such as "your sister or brother or ... your wife or girlfriend." Third, the offender had to provide the age of both the offender and victim when victimization began.
¶ 6 Fourth, the offender was required to detail "the entire story," including how the offender met the victim, how the offender got the victim alone, and how the offender "abused this victim," including whether the offender's behavior or tactics changed in an important way over time. Fifth, the offender had to provide the number of times the victimization occurred. The instructions provided as an example, "I abused Susie twice a week for six months." Sixth, the offender had to describe where the abuse took place, such as the victim's bedroom or in an abandoned building. Seventh, the offender was required to explain what he or she did to get the victim to cooperate. This required the offender to "[d]escribe what you said to the victim in order for the victim to feel the need to cooperate" and to "[t]hink about how your superiority may have influenced the victim." As examples, the instructions ask "was she your granddaughter, a stepchild, or 10 years younger." Eighth, the offender had to describe how he or she kept the victim from telling, such as deceit, threats, or other intimidation. Ninth, the offender was required to describe how the offense was discovered or, if it was not, to "write something [like] ‘She never reported the abuse and I was never caught.’ " Mr. Bennett completed both the Victim Forms and the Victim Narratives during his first attempt in the BCCC program. Prior to doing so, he was not given a warning to limit his disclosures in any way.
¶ 7 Mr. Bennett was also required to undergo therapy during his first attempt in the program. During this therapy, Mr. Bennett orally disclosed detailed information about uncharged sex offenses against five victims to his BCCC therapist, Ann Erickson, as part of providing his sexual history disclosure. Ms. Erickson did not warn him about any duty to report prior to this disclosure. Immediately after Mr. Bennett had provided specific information about the five victims, Ms. Erickson told him he should not have specifically identified the victims as it triggered her duty to report the offenses. Mr. Bennett states in his opening brief that the uncharged offenses he initially reported were not incriminating because the State was aware of these offenses before the initial prosecution and the statute of limitation had run.
¶ 8 Also as part of Mr. Bennett's first attempt in the BCCC program, Mr. Bennett was required to undergo a polygraph test verifying that he had fully disclosed his sexual history. The questions the examiner asked during Mr. Bennett's first exam during his first parole and attempt in the program included the following: "Since turning eighteen, have you sexually touched the genitals of any minors other than your victim of conviction?"; "Are you intentionally withholding any of the sexual abuse you perpetrated against [your victim of conviction]?"; "Do you have sexual victims that you are intentionally withholding from your therapist?"; "Other than what we discussed, have you forced anyone to have physical sexual contact prior to your date of conviction?"; and "Have you intentionally withheld any victims from your sexual history report?" Mr. Bennett invoked his Fifth Amendment right against self-incrimination and, though he answered some of the questions in a general way, he refused to provide more specific answers. He claims that the "treatment team pointedly demanded answers to questions that would require me to incriminate myself," and that BCCC staff "called [his] non-incriminating answers ‘vague.’ " Mr. Bennett failed the initial polygraph test and a second polygraph was scheduled. At the second polygraph examination, he again invoked his Fifth Amendment rights and again failed.
¶ 9 A warrant was subsequently issued for Mr. Bennett's arrest. The authorities sought the warrant because of Mr. Bennett's failure to successfully progress in the BCCC program. BCCC staff stated that he presented "as artificial and emotionally closed off in therapy" and was "manipulative and admits to being purposefully deceitful." Further, because of his shortcomings in the program, they considered him "a risk to community safety." Mr. Bennett also alleges that the BCCC program director, Mr. Greenberg, told him while arresting him that
¶ 10 Mr. Bennett challenged the State's grounds for revoking his parole. The Board held a revocation and evidentiary hearing.1 The State submitted the affidavit of BCCC supervisor Craig Greenberg describing the general procedures for parolees in treatment.2 In the affidavit, Mr. Greenberg stated that "[o]ffenders are told how to appropriately disclose uncharged victim information at many stages of therapy, including the intake process, during their first treatment team hearing, in their various group meetings, and reinforced during offender's individual therapy sessions." Further, Mr. Greenberg stated that offenders are instructed to identify the victim only by gender and age. And they are specifically warned "not to disclose identifying information such as the victim's name or other identifying features, the nature of the relationship with the victim,...
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