Making Steven Powell disclose his sexual history as part of sex offender treatment violates one of his constitutional rights, the state appellate court said Tuesday.
Powell argued in his appeal that being forced to answer questions about his sexual history violated his Fifth Amendment right that protects him against self-incrimination.
The Washington State Court of Appeals agreed.
Powell landed in jail as a spinoff of the investigation into the high-profile disappearance of his daughter-in-law, Susan Cox Powell, a former Puyallup resident.
While police investigated the Susan Powell case, investigators found photos of two neighbor girls that Steven Powell had taken while they were in their bathroom.
He was convicted of 12 counts of voyeurism in 2012. He served 30 months in prison and was ordered to complete sexual deviancy treatment.
In November 2014, when Powell refused to discuss his sexual history during that process, Pierce County Superior Court Judge Ronald Culpepper ordered him jailed for 40 days. The judge told him he still had to undergo treatment.
A three-judge panel for Division II of the state appellate court reversed that order in its opinion Tuesday.
“Powell faces a realistic threat of self-incrimination if he is compelled to reveal his sexual history in the course of court-imposed sexual deviancy treatment,” appellate Judge Linda CJ Lee wrote for the unanimous court.
If prosecutors had been willing to offer Powell immunity, making sure he couldn’t be held accountable for any crimes that might be discussed during treatment, then he’d have to answer sexual history questions, the court said.
Otherwise, according to the opinion, making him give those answers and punishing him for refusing violates his Fifth Amendment protection.
A charge of child pornography was dismissed in Powell’s case, then reinstated in a separate state appellate court decision. Powell, 65 at the time, was sentenced to another five years for that crime in August.
His son, Josh Powell, was being investigated in 2012 for the disappearance of his wife, Susan Cox Powell, who went missing from their Utah home in 2009.
Josh Powell killed his two sons and himself in 2012.