Colorado’s second-highest court clarified last week that if a defendant on sex-offender probation refuses to accept responsibility for his crime as a condition of treatment, the Fifth Amendment’s protection against self-incrimination may prohibit a judge from revoking his probation as a punishment.

A three-judge panel for the Court of Appeals specified that its decision applied in only a narrow circumstance: during the window in which a defendant can challenge his conviction and conceivably receive a new trial.

The consequence of requiring a defendant to admit to potentially criminal behavior to enter treatment, wrote Judge Ted C. Tow III, would enable prosecutors to use those statements against him should the original conviction be overturned.

Tow conceded the result may be that some sex offenders cannot receive the full range of treatment while they pursue post-conviction relief, and another branch of government may need to craft a solution.

“Indeed, given the frequency with which this issue arises, it may behoove the legislature to explore how best to balance the interests of community safety and an offender’s treatment needs with the offender’s right against self-incrimination,” he wrote in the appellate panel’s Feb. 9 opinion.

However, Robert Eulogio Vigil, whose sex offender probation was the subject of the appeal, argued the tension between safety and constitutionality would be alleviated if prosecutors agreed not to use his treatment-related incriminating statements in a possible future trial.

“The most likely scenario is that the prosecution wants to have its cake and eat it, too. It wants to compel Vigil to incriminate himself under the pretext of community safety, and then be able to use those incriminating statements against him at trial should he win postconviction relief,” wrote Deputy State Public Defender John Plimpton.

A Pueblo County jury convicted Vigil in 2015 on two counts of sexual assault on a child. Vigil denied the charges at trial. He received a sentence of two consecutive terms of intensive supervised probation, lasting 10 years to life. The trial judge agreed to postpone Vigil’s required sex-offender treatment during his appeal.

After the Court of Appeals upheld his conviction in February 2019, the judge reinstated Vigil’s treatment.

One month later, Vigil’s probation officer moved to revoke Vigil’s probation. He had refused to sign the contract with his treatment provider, with his lawyer warning Vigil that he would incriminate himself by signing.

The contract required Vigil to acknowledge his treatment was to “control my deviant sexual behavior” and “prevent further victimization of others.” By signing, Vigil would “understand that taking responsibility for my sexually offensive behavior is a primary issue to be addressed in treatment.”

Finally, Vigil would agree that “I am in treatment for victimizing others through sexually offensive behavior.”

After a hearing, District Court Judge William Alexander agreed Vigil had violated a condition of his probation by not complying with his treatment, as well as two other curfew-related violations. Even though Alexander and the probation officer knew that Vigil would be filing a petition to challenge his conviction – and did file it one month later – the judge declined to rule on the applicability of Vigil’s Fifth Amendment protection against being compelled to incriminate himself.

Alexander reimposed Vigil’s probationary sentences, starting anew. This time, his treatment provider agreed to modify its conditions to prevent Vigil’s self-incrimination while he sought post-conviction relief based on alleged ineffective assistance from counsel.

In appealing Alexander’s revocation order, Vigil argued that signing the contract would have furnished the prosecution with damaging statements should he win a new trial, or else could be used for new sex-offender charges. Because Vigil insisted at trial he did not commit the offenses, he also raised the possibility of perjury charges.

Vigil relied on a 2016 decision of the Colorado Supreme Court, People v. Roberson, which examined whether a defendant could refuse to answer questions during a lie detector test about viewing child pornography while his sex crime conviction was on appeal. A majority of the court concluded the Fifth Amendment’s protection against compelled self-incrimination meant the defendant could not have his probation revoked for staying silent.

The government, however, argued that applying Roberson to Vigil’s case meant he could pursue his post-conviction claim for years without attending treatment.

“This Court should not allow an offender to avoid treatment by using the Fifth Amendment privilege as a sword,” wrote Assistant Solicitor General Joseph G. Michaels. “Doing so in post-conviction proceedings not only would endanger the community, but it also would do so in a context where reversal is exceedingly rare.”

The appellate panel countered that “rare” does not mean nonexistent, and a new trial for Vigil was not categorically off the table.

Although other states have reached different conclusions on the issue, Tow wrote, “we believe the better reasoned decisions are those that protect a defendant’s constitutional right against self-incrimination while the defendant’s initial period for seeking timely postconviction relief has not run.”

Tow cautioned that the panel’s decision may result in a “hesitancy” to place sex offenders on probation if they can postpone their treatment while challenging their convictions. However, he explained that prosecutors can avoid that outcome by granting immunity solely for incriminating statements made pursuant to treatment contracts.

The panel returned Vigil’s case to the trial court to determine whether his two other probation violations on their own warranted revocation.

The case is People v. Vigil.