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Probationer Waived Psychotherapist-Patient Privilege in Sex Offender Treatment

By William Vogeler, Esq. on March 20, 2017 | Last updated on March 21, 2019

A federal appeals court ruled that a Virginia man waived the psychotherapist-patient privilege in a sex offender treatment program when he agreed to probation.

The U.S. Fourth Circuit Court of Appeals also said the defendant voluntarily made statements in the program that waived his privilege against self-incrimination in the case, United States of America v. Lara. The appeals court affirmed rulings by a trial judge, who concluded Juan Elias Lara waived his privileges when he chose to participate in the program as part of his probation.

"Based on the record before us, we conclude that Lara knowingly agreed to disclosure of his treatment records when he signed the form in the state court proceedings acknowledging the terms of his supervised probation," Judge Barbara Milano Keenan wrote for the unanimous panel.

Plea Bargain

Lara was convicted of aggravated sexual battery of a mentally incapacitated victim, and sentenced to 20 years' imprisonment, with 17 years suspended and 20 years' supervised probation. He was released in December 2009 and began the state's Sex Offender Treatment Program.

During an intake interview, Lara told his social worker about his criminal history, including sexual contact with minors and involvement in two murders. He also signed confidentiality waivers.

After completing the treatment program, Lara violated probation by leaving the state without registering as a sex offender. He was arrested, and he later pleaded guilty.

Waiver to Sentencing

At sentencing, Lara sought to exclude the incriminating statements he made to his social worker. The trial court said he waived his privileges, and sentenced him to 120 months' imprisonment.

The appellate court affirmed, concluding that Lara agreed to be bound by the conditions of probation and "knowingly" waived his privileges. Lara had argued that his waiver was not voluntary.

"Lara does not cite any authority for the proposition that his acquiescence to the conditions of probation was not voluntary because the alternative would have been additional imprisonment," the court said.

"There is ample authority, however, to support the contrary conclusion that a defendant's agreement to be bound by court-imposed conditions of release is not rendered involuntary by the sole fact that he will be incarcerated in the absence of such acquiescence."

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