Raybin & Weissman

Sex Offender Probation

CaseState v. Westley A. Albright

Issue:  Can a person on sex offender probation be violated for failing to admit his or her crime?

Facts:  Defendant pled nolo contendere to a sex offence. As a condition of probation, Defendant agreed to participate in sex offender treatment. Defendant was discharged from the program for failure to “comply with the goals of his treatment program,” which included confessing to the underlying offense. The trial court held the Defendant to be in violation of his probation conditions.

Appellate Decision:  The intermediate court affirmed the violation finding. The court first held that Defendant had “ample notice” of the conditions to which he would be subjected when he entered his plea. The court next held that the Defendant failed to comply with the objective terms of the probation conditions, noting that “the admission of guilt” was just as essential to participation as attendance and payment of fees.

Review Granted:  September 21, 2017.

Prediction:  Ben thinks the Supreme Court will affirm based on the trial court’s specific finding that Defendant was dishonest about his denial. That being said, cases like this are extremely troubling where a person is punished for “thought crime” or declining to confess when he may be innocent (or truly believe he is innocent). This is particularly true when, as here, the person does not plead guilty in court.

David thinks the Supreme Court will reverse based on the concerns raised by Ben. In pleading nolo contendere and merely agreeing to participate in treatment, the Defendant cannot have reasonably been expected to know he would be compelled to confess or give a story deemed sufficiently plausible by a treatment provider. The Sex Offender Special Conditions from which the “counselling” requirements are derived are so broad as to be incomprehensible. There is nothing there which would put anyone on notice that they must “confess” to their crime.