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Compelling Testimony

Does Kansas’ peter meter rise to the level of thumbscrews?

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Robert Lile has reached middle age behind bars, proclaiming himself innocent of kidnapping a seventeen-year-old girl and raping her in the backseat of his car eighteen years ago. When he was 25, he had consensual sex with the minor, he says, but the Kansas Department of Corrections calls that claim "failure to accept responsibility for his crimes." Lile says he is even expected to admit things he's never been accused of: The Lansing state prison's Sex Abuse Treatment Program requires that inmates disclose all their crimes as a first step to recovery.

This expectation and the state's demand that Lile permit the use of a "plethysmograph" on his penis ("Penile System," October 5, 2000) have kept Lile in a legal battle with corrections for the past seven years. At the request of the State of Kansas, the United States Supreme Court has agreed to hear the case in November or December and decide whether the treatment program violates Lile's Fifth Amendment right not to be a witness against himself.

"I believe everybody's entitled to the protection of the U.S. Constitution, not just people who are free," Lile says by phone from Lansing.

In 1994, Lile was in medium security when prison officials told him to accept treatment or lose privileges and go to a maximum-security unit. Lile had earned such privileges as long weekend visits with his wife, access to television and radio and use of the prison's gym and yard. Under the treatment, Lile would sign an admission of guilt (now admission of responsibility) for the conviction that landed him in prison and enumerate in writing any past sex crimes. Lile refused.

Lile also objected to "penile plethysmograph" testing. The test, operated at Lansing not by a therapist but by an audiovisual technician, requires inmates to drop their pants and hook their genitals to a machine that measures levels of arousal while they listen to graphic taped stories of child molestation and rape.

Lile's attorney, Matthew Wiltanger, says that both sides agree the state is soliciting "incriminating information" that could be used to prosecute the inmates. (The state is required by law to report previously undisclosed sex crimes that an inmate reveals.) To protect the innocent from falsely confessing to crimes under pressure or threat, the Fifth Amendment exempts the accused from compulsory admissions of guilt. The issue before the nine justices will be whether the state is compelling inmates to confess by threatening them with lost privileges and maximum-security incarceration.

Corrections attorney Timothy Madden views the privileges as "management tools" used by prison officials to maintain order among the prisoners. "Anything that's withheld from them [for not participating in the program] is something that does not have to be provided to them in the first place," Madden says, noting that Lansing's maximum-security facility "has not been found to pose an unconstitutional danger to the inmates housed there."

Wiltanger notes that both a federal district court and an appeals court accepted Lile's argument that the state was trying to compel Lile to confess. "If he doesn't do it, they automatically sanction him by ... reducing his visitation, reducing his ability to move, subjecting him to an incredibly violent part of the prison. It's the same kind of stuff that they do when they want to punish inmates for disciplinary problems," Wiltanger says.

Lile says he feels he would be in grave danger in maximum security.

"When people have nothing and they just sit with idle minds, they're left to robbing people, fighting over stupid things. I've seen people killed, I've seen people stabbed, I've seen people beaten [in maximum security].You've got to be alert at all times," Lile says.

Lile's wife, Joyce, who has known her husband since they were teenagers and married him after he went to prison, says her husband has paid a high price for fighting the state and has attracted the ire of corrections officials.

"[Robert] is no longer looked at as the typical inmate. It's a political issue. When they look at [him] it's political," she says.

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