The ACLU of Virginia filed an amicus brief in the case of Commonwealth v. Galen Baughman in Arlington County Circuit Court. The brief supports Mr. Baughman’s assertion of his Fifth Amendment privilege against self-incrimination in response to an incriminating questionnaire required to be completed as part of his court-ordered treatment.
The Virginia Department of Corrections requires individuals on probation for a sex offense conviction to fill out a Sexual History Disclosure questionnaire, followed by a polygraph test to verify the answers. This questionnaire asks detailed questions about the person’s sexual history, including about criminalized conduct. Although the questionnaire is supposedly intended for treatment purposes, the answers are shared with probation officers, there is nothing in the Virginia Code protecting the probationers from having their answers used against them in future prosecutions, and the Virginia Department of Corrections has sought to revoke probation of people who have asserted their Fifth Amendment privilege rather than answer. In Mr. Baughman’s case, the Department of Corrections sought a hearing after Mr. Baughman’s counsel advised him to assert his Fifth Amendment privilege in response to any incriminating questions.
In its amicus brief to the court, the ACLU of Virginia requests that the court clarify that the Fifth Amendment privilege against self-incrimination applies to the Sexual History Disclosure questionnaire and accompanying polygraph test, and further argues that the questionnaire and polygraph scheme as administered by VDOC upon threat of revocation of probation impermissibly penalizes people for invoking their constitutional rights.