This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 54

IN THE

SUPREME COURT OF THE STATE OF UTAH

BRENDT THOMAS BENNETT,

Appellant,

v.

ALFRED BIGELOW, et al.,

Appellee.

No. 20140680

Filed November 25, 2016

On Petition for Extraordinary Relief

Sixth District, Manti

The Honorable Marvin D. Bagley

No. 20140683

Attorneys:

Linda M. Jones, Troy L. Booher, Erin B. Hull, Salt Lake City, 

for appellant

Sean D. Reyes, Att‘y Gen., Brent A. Burnett, Sharell S. Reber, 

Asst. Att‘ys Gen., Salt Lake City, for appellee

CHIEF JUSTICE DURRANT authored the opinion of the court, in which 

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, 

and JUSTICE HIMONAS joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶ 1 Brendt Bennett claims that his Fifth Amendment rights were 

violated when he was required to disclose his entire sexual history, 

including any uncharged sexual crimes, as part of his sex offender 

treatment during parole. He refused to make these disclosures and 

his parole was revoked, requiring him to return to prison to 

potentially serve the remainder of his indeterminate six year to life 

sentence. The district court dismissed Mr. Bennett‘s Fifth 

Amendment challenge to the parole revocation at summary 
BENNETT v. BIGELOW

Opinion of the Court

2

judgment. We hold that Mr. Bennett has established that genuine 

issues of material fact exist that preclude the grant of summary 

judgment and reverse. 

Background

¶ 2 Mr. Bennett pleaded guilty to one count of rape of a child, a 

first-degree felony, in August 2000. The district court sentenced him 

to an indeterminate sentence of six years to life. In 2007, after 

Mr. Bennett successfully completed an in-prison sex offender 

treatment program, the Board of Pardons and Parole (Board) granted 

him his first opportunity to be released on parole. He was paroled to 

the Bonneville Community Correctional Center (BCCC). As a 

condition of parole, Mr. Bennett was to successfully complete the 

BCCC sex offender program. The Department of Corrections was 

instructed to immediately notify the Board if Mr. Bennett was 

removed from the program. 

¶ 3 As part of his first attempt in the BCCC program, Mr. 

Bennett was required to give a complete sexual history, including 

any past charged or uncharged sex offenses. He was given several 

assignments and other requirements in order to successfully 

complete the BCCC program, including treatment journals, 

psychosexual testing, an autobiography, and a polygraph test. One 

such assignment was to complete an ―Offense Report.‖ This report 

had two purposes: ―First, to help [the offender] make a complete 

disclosure which is essential to a successful treatment experience. 

Second, to assist [the offender] in gaining a thorough picture of all 

details of [his or her] offense(s).‖ The instructions to the report 

―encouraged [the offender] to complete the assignment in a detailed 

way.‖ As part of this report, the offender had to complete a ―Victim 

Form‖ and a ―Victim Narrative.‖

¶ 4 The instructions to the Victim Form stated that the offender 

must complete a separate form for ―[e]very person with whom [the 

offender] had sexual contact [before the offender was 18 years of 

age] who was 3 years or more[] younger than [the offender]‖ as well 

as ―[e]very person under 18 with whom [the offender] had any 

sexual contact‖ and ―[a]ny person with whom [the offender] had 

non-consensual sexual contact‖ after the offender was 18 years old. 

The form itself required the offender to provide the victim‘s name, 

age, and sex as well as the offender‘s age at the time of first contact. 

The offender was then required to indicate the type and amount of 

sexual contact with the victim. The final part of the form required the 

offender to describe the month and year of the first and last sexual 

contact of any kind with the victim. The form did not indicate that 
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Opinion of the Court

3

the person completing it should limit his or her responses in any 

way.

¶ 5 The instructions to the Victim Narrative required the 

offender to ―[d]escribe all the activities . . . that are listed and 

counted on the victim form‖ and suggested that the narrative ―[m]ay 

be several pages for each victim.‖ There were nine specific 

requirements to a victim narrative: first, the offender was required to 

provide the victim‘s name or some other means to identify the 

victim. The instructions warned the offender to ―not divulge the last 

names of victims to the group‖ and to ―[u]se only the first name to 

protect your victim[‘]s identities.‖ If the offender did not know or 

could not recall the name, the offender should ―use some other 

means to identify the victim, such as  ̳My sister‘s 8-year[-]old 

friend.‘‖ Second, the offender had to describe how the victim may 

have been related to the offender and how the offender became 

acquainted with the victim, with examples such as ―your sister or 

brother or . . . your wife or girlfriend.‖ Third, the offender had to 

provide the age of both the offender and victim when victimization 

began. 

¶ 6 Fourth, the offender was required to detail ―the entire 

story,‖ including how the offender met the victim, how the offender 

got the victim alone, and how the offender ―abused this victim,‖ 

including whether the offender‘s behavior or tactics changed in an 

important way over time. Fifth, the offender had to provide the 

number of times the victimization occurred. The instructions 

provided as an example, ―I abused Susie twice a week for six 

months.‖ Sixth, the offender had to describe where the abuse took 

place, such as the victim‘s bedroom or in an abandoned building. 

Seventh, the offender was required to explain what he or she did to 

get the victim to cooperate. This required the offender to ―[d]escribe 

what you said to the victim in order for the victim to feel the need to 

cooperate‖ and to ―[t]hink about how your superiority may have 

influenced the victim.‖ As examples, the instructions ask ―was she 

your granddaughter, a stepchild, or 10 years younger.‖ Eighth, the 

offender had to describe how he or she kept the victim from telling, 

such as deceit, threats, or other intimidation. Ninth, the offender was 

required to describe how the offense was discovered or, if it was not, 

to ―write something [like]  ̳She never reported the abuse and I was 

never caught.‘‖ Mr. Bennett completed both the Victim Forms and 

the Victim Narratives during his first attempt in the BCCC program. 

Prior to doing so, he was not given a warning to limit his disclosures 

in any way. 
BENNETT v. BIGELOW

Opinion of the Court

4

¶ 7 Mr. Bennett was also required to undergo therapy during 

his first attempt in the program. During this therapy, Mr. Bennett 

orally disclosed detailed information about uncharged sex offenses 

against five victims to his BCCC therapist, Ann Erickson, as part of 

providing his sexual history disclosure. Ms. Erickson did not warn 

him about any duty to report prior to this disclosure. Immediately 

after Mr. Bennett had provided specific information about the five 

victims, Ms. Erickson told him he should not have specifically 

identified the victims as it triggered her duty to report the offenses. 

Mr. Bennett states in his opening brief that the uncharged offenses he 

initially reported were not incriminating because the State was

aware of these offenses before the initial prosecution and the statute 

of limitation had run. 

¶ 8 Also as part of Mr. Bennett‘s first attempt in the BCCC 

program, Mr. Bennett was required to undergo a polygraph test 

verifying that he had fully disclosed his sexual history. The 

questions the examiner asked during Mr. Bennett‘s first exam during 

his first parole and attempt in the program included the following: 

―Since turning eighteen, have you sexually touched the genitals of 

any minors other than your victim of conviction?‖; ‖Are you 

intentionally withholding any of the sexual abuse you perpetrated 

against [your victim of conviction]?‖; ―Do you have sexual victims 

that you are intentionally withholding from your therapist?‖; ―Other 

than what we discussed, have you forced anyone to have physical 

sexual contact prior to your date of conviction?‖; and ―Have you 

intentionally withheld any victims from your sexual history report?‖ 

Mr. Bennett invoked his Fifth Amendment right against selfincrimination and, though he answered some of the questions in a 

general way, he refused to provide more specific answers. He claims 

that the ―treatment team pointedly demanded answers to questions 

that would require me to incriminate myself,‖ and that BCCC staff 

―called [his] non-incriminating answers  ̳vague.‘‖ Mr. Bennett failed 

the initial polygraph test and a second polygraph was scheduled. At 

the second polygraph examination, he again invoked his Fifth 

Amendment rights and again failed. 

¶ 9 A warrant was subsequently issued for Mr. Bennett‘s arrest. 

The authorities sought the warrant because of Mr. Bennett‘s failure 

to successfully progress in the BCCC program. BCCC staff stated 

that he presented ―as artificial and emotionally closed off in therapy‖ 

and was ―manipulative and admits to being purposefully deceitful.‖ 

Further, because of his shortcomings in the program, they 

considered him ―a risk to community safety.‖ Mr. Bennett also 

alleges that the BCCC program director, Mr. Greenberg, told him
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Opinion of the Court

5

while arresting him that ―[y]ou claimed a Fifth Amendment right. 

When you do that you can‘t complete the program.‖ 

¶ 10 Mr. Bennett challenged the State‘s grounds for revoking his 

parole. The Board held a revocation and evidentiary hearing.1 The 

State submitted the affidavit of BCCC supervisor Craig Greenberg 

describing the general procedures for parolees in treatment.

2 In the 

affidavit, Mr. Greenberg stated that ―[o]ffenders are told how to 

appropriately disclose uncharged victim information at many stages 

of therapy, including the intake process, during their first treatment 

team hearing, in their various group meetings, and reinforced 

_____________________________________________________________

1 In connection with this hearing, Mr. Bennett submitted the 

affidavit of David Legrande Draper. In his affidavit, Mr. Draper 

stated that he is a prison inmate who entered the Utah State Prison‘s 

sex offender program in April 1991 and was subsequently 

prosecuted for admissions that he was required to make during the 

program. Specifically, Mr. Draper stated ―[t]hat the prison‘s Sex 

Offender Program required full disclosure of all affiant‘s past 

offenses,‖ and ―that  ̳full disclosure‘ was defined as including names, 

dates, places, and a full description of offenses.‖ Although 

Mr. Bennett has attempted to rely on this affidavit in support of his 

claim that he was asked to provide a ―self-incriminating full 

disclosure‖ in the BCCC program, the affidavit describes only the 

prison sex offender program, not the BCCC program, and so is 

unhelpful.

2 We note that the State‘s reliance on the affidavit of the BCCC 

program director is somewhat troubling. It does not appear that 

Mr. Greenberg had personal knowledge of the events in question—

the various therapy sessions and polygraph tests—and that he only 

provides generalized information as to program guidelines.

Although Mr. Greenberg may be a credible witness as to what 

usually occurs in the program, at summary judgment ―it is not for a 

court to weigh the evidence or assess credibility.‖ Webster v. Sill, 675 

P.2d 1170, 1172 (Utah 1983). We are therefore reluctant to credit such 

generalized statements about what Mr. Greenberg believes happens 

in the program over the more specific statements of Mr. Bennett as to 

what he claims actually did happen in his attempts in the program, 

especially given that ―[a] single sworn statement is sufficient to 

create an issue of fact‖ and we are required to construe all doubts, 

uncertainties, and inferences in the light most favorable to 

Mr. Bennett. Id.
BENNETT v. BIGELOW

Opinion of the Court

6

during offender‘s individual therapy sessions.‖ Further, Mr. 

Greenberg stated that offenders are instructed to identify the victim 

only by gender and age. And they are specifically warned ―not to 

disclose identifying information such as the victim‘s name or other 

identifying features, the nature of the relationship with the victim, or 

where the abuse took place.‖ Mr. Greenberg also said that he was 

―not aware of any offender who has been prosecuted during the 13 

years [he has] been associated with the Sex Offender Treatment 

program, based on the general disclosure information required as 

part of the sex offender treatment.‖ 

¶ 11 In the affidavit, Mr. Greenberg also made clear the role of 

the BCCC in relation to the decision to revoke parole. He stated that 

the ―Department is under a statutory obligation to provide the Board 

progress reports as to the sex offender‘s participation or 

nonparticipation in sex offender treatment.‖ The BCCC staff makes 

recommendations about parole status, but the Board makes the final 

parole decisions. Mr. Greenberg observed that the Board has 

―paroled sex offenders where a treatment staff‘s recommendation 

has been against parole, and the Board has continued incarceration 

where staff has recommended parole.‖ He described the BCCC staff 

recommendations as one of ―a myriad of factors‖ the Board 

considers when making parole determinations. Mr. Greenberg did 

not discuss the specifics of Mr. Bennett‘s case. 

¶ 12 After considering Mr. Bennett‘s self-incrimination claim, the 

hearing officer found that the general program, as described by 

Mr. Greenberg, would not have violated Mr. Bennett‘s rights. But it 

appears that the hearing officer did intend to proceed with an 

evidentiary hearing because of concerns about whether the program, 

as applied to Mr. Bennett, may have violated his rights.3 Mr. Bennett 

pleaded no contest, however, in order to ―pursue that issue in 

federal court.‖ The Board then revoked Mr. Bennett‘s parole. 

_____________________________________________________________

3 The hearing officer states that he ―found that under the 

circumstance in which a parolee can be subject to re-incarceration 

upon AP&P‘s [Adult Probation & Parole] request for a BOPP [Board 

of Pardons and Parole] warrant for failure of the SOT [Sex Offender 

Treatment] program in a CCC [Community Correctional Center] for 

not providing information deemed necessary for SOT completion by 

program administrators [], the parolee is compelled under the color 

of authority to provide the information sought or face expulsion 

from the program.‖ 
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Opinion of the Court

7

¶ 13 A month later, the Board again released Mr. Bennett on 

parole on the condition that he successfully complete the BCCC sex 

offender treatment program. It is not clear from the record what 

requirements or assignments, aside from therapy, Mr. Bennett was 

required to complete as part of his second attempt in the program, or 

whether those requirements and assignments were the same as in his 

first attempt, as his second attempt was short-lived. Indeed, his 

second parole, which included his second attempt to successfully 

complete the BCCC program, lasted only ten days. 

¶ 14 The only evidence in the record as to what Mr. Bennett was 

required to do in his second attempt indicates that he attempted to 

engage in therapy and almost immediately failed the program. 

Mr. Bennett claims that he 

met with the sex offender program therapist for an 

initial interview. The therapist made it clear to [him] 

that in order to successfully complete the [B]CCC sex 

offender program [he] must agree to abandon [his] 

legal position about self-incrimination and provide a 

self-incriminating full disclosure. [He] refused to do so 

and asserted a claim against self-incrimination. 

The BCCC puts forth a starkly different version of the encounter in 

the ―treatment summary‖ it provided when it recommended that 

parole be revoked. The treatment summary states that at this initial 

meeting with his therapist—the beginning of his second attempt in 

the BCCC program—Mr. Bennett read a statement attributed to his 

lawyer that ―[i]f Mr. Bennett is removed from treatment[,] he will file 

a lawsuit and will most likely prevail.‖ The therapist then reminded 

Mr. Bennett that he needed to fully participate in the program 

including ―discussing his issues of sexual deviancy‖ and reviewed 

the BCCC‘s disclosure protocols. Specifically, Mr. Bennett ―was told 

the program expectations regarding uncharged crimes are that he 

disclose age and gender of the victim and the deviant sexual act 

perpetuated. He was notified that he [was] not expected to provide 

any identifying information that would trigger a duty to report.‖ Mr. 

Bennett responded that ―he knew this and that he and treatment 

staff had  ̳gone over it many times,‘‖ but that he was still invoking 

the Fifth Amendment to refuse to answer what he considered to be 

incriminatory questions. 

¶ 15 The BCCC consequently sought a warrant, stating in its 

Warrant Request & Parole Violation Report that Mr. Bennett was 

―being removed from [the program] because he demonstrates an 

unwillingness to comply with treatment guidelines . . . and program 
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Opinion of the Court

8

expectations.‖ The report also noted that this was the same behavior 

and unwillingness that caused his first parole to be revoked. The 

Board issued another warrant for his arrest and eventually revoked 

its second grant of parole to Mr. Bennett. 

¶ 16 Mr. Bennett filed a Petition for Extraordinary Relief in 

September 2009 against Warden Alfred Bigelow and the Utah Board 

of Pardons and Parole (collectively, ―State‖), claiming, inter alia, that 

the BCCC program unconstitutionally required him to incriminate 

himself. With his petition, Mr. Bennett included a request that the 

court appoint pro bono counsel, which the court denied. The State 

filed a motion for summary judgment, which Mr. Bennett opposed, 

again asking the court to appoint counsel. The district court granted 

the State‘s motion after finding that no issues of material fact existed 

that would preclude summary judgment. The court also again 

denied Mr. Bennett‘s request for counsel, concluding that the second 

request was, under the applicable Utah Rules of Civil Procedure, an 

inappropriate motion to reconsider the court‘s prior denial. Mr. 

Bennett now appeals the district court‘s refusal to appoint counsel as 

well as its grant of summary judgment on the constitutionality of the 

BCCC‘s requirement that he disclose previously undisclosed 

criminal acts. We have jurisdiction pursuant to Utah Code section 

78A-3-102(3)(j).

Standard of Review

¶ 17 Mr. Bennett raises two issues on appeal. First, he asks us to 

review the district court‘s decision to deny his second request for 

appointment of counsel as a misapplication of the Rules of Civil 

Procedure. While a decision to reconsider an issue already ruled 

upon is in the discretion of the district court,4 the interpretation of 

the rules of civil procedure is a legal issue we review for correctness. 

Second, he asks us to review the district court‘s decision on 

summary judgment that the State did not violate Mr. Bennett‘s Fifth 

Amendment rights. ―[W]e review a grant of  ̳summary judgment for 

correctness, granting no deference to the [lower] court.‘‖5 Summary 

judgment is appropriate only ―when the record shows that there is 

no genuine issue as to any material fact and that the moving party is 

_____________________________________________________________

4 See IHC Health Servs. Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 

196 P.3d 588.

5 Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (second alteration in 

original) (citation omitted).
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Opinion of the Court

9

entitled to a judgment as a matter of law.‖6 In reviewing the trial 

court‘s decision, ―we view the facts and all reasonable inferences 

drawn therefrom in the light most favorable to the nonmoving 

party,‖ which in this case is Mr. Bennett.7

Analysis

¶ 18 Our discussion of Mr. Bennett‘s claims proceeds as follows: 

First we address his argument that the trial court erred in concluding 

that rule 54 of the Utah Rules of Civil Procedure prevented it from 

considering his second request for counsel. We hold that the court 

erred in its interpretation of the rule and instruct the court, on 

remand, to reconsider whether counsel should be appointed for Mr. 

Bennett. We then address his claim that the requirement that he 

disclose charged and uncharged sex crimes as part of his sex 

offender treatment on parole violated his Fifth Amendment right to 

be free from compelled self-incrimination. We first note that Mr. 

Bennett has established standing to assert this claim and then 

address the claim on the merits, concluding that Mr. Bennett has 

established that genuine issues of material fact exist that preclude 

summary judgment. Accordingly, we reverse the grant of summary 

judgment and remand.

I. The Trial Court Erred by Refusing to Consider

Whether to Appoint Counsel

¶ 19 Mr. Bennett twice requested that he be appointed counsel: 

First when he filed his petition and second after he filed his response 

to the State‘s motion for summary judgment. The trial court, 

recognizing that it had the discretion to appoint counsel under Utah 

Code section 78B-9-109(1), denied the first request based on its 

evaluation of the two factors found in section 78B-9-109(2).8 When 

_____________________________________________________________

6 Id. (citation omitted).

7 Id. (citation omitted).

8 The two factors are ―whether the petition . . . contains factual 

allegations that will require an evidentiary hearing‖ and ―whether 

the petition involves complicated issues of law or fact that require 

the assistance of counsel for proper adjudication.‖ UTAH CODE § 78B9-109(2)(a)–(b). The court concluded that ―an evidentiary hearing 

[was] unnecessary‖ because the ―case pertains to actions by the 

Board of Pardons and Parole which all have a record.‖ It also 

determined that Mr. Bennett‘s case did ―not include complicated 

issues of law or fact that would require the assistance of counsel.‖ 
BENNETT v. BIGELOW

Opinion of the Court

10

Mr. Bennett again requested that counsel be appointed, the court 

considered the request to be a motion to reconsider its earlier denial 

of Mr. Bennett‘s request for counsel. The court found ―no provision 

in the [Rules of Civil Procedure] for motions for reconsideration‖ 

and stated that rule 54, the basis for Mr. Bennett‘s argument, applies 

only to ―judgments,‖ which are ―order[s] from which an appeal lies.‖ 

Since the prior denial was not such an order, the court concluded 

that it did not have the ability to reconsider it and again denied 

Mr. Bennett‘s request.

¶ 20 The trial court‘s conclusion that rule 54 prevented it from 

reconsidering Mr. Bennett‘s request for counsel was erroneous. 

Indeed, the parties agree as to this point. Rule 54 contemplates 

orders and other decisions that ―adjudicate[] fewer than all the 

claims or the rights and liabilities of fewer than all the parties.‖9 Such 

orders do ―not end the action . . . and may be changed at any time before 

the entry of judgment.‖10 Although ―this court has consistently held 

that our rules of civil procedure do not provide for a motion for 

reconsideration of a trial court‘s order or judgment,‖ a motion such 

as Mr. Bennett‘s is, ―in essence, not a motion for reconsideration at 

all, but simply a reargument‖ of the motion or request that gave rise 

to the prior order.11 And under rule 54, ―a trial court is free to 

entertain [the reargument] at any point prior to entry of a final order 

or judgment.‖12

¶ 21 Accordingly, the trial court erred when it concluded that 

rule 54 prohibited its consideration of Mr. Bennett‘s second request 

for counsel. And because we reverse the grant of summary 

judgment, the court on remand should consider whether counsel 

should be appointed for future proceedings under Utah Code section 

78B-9-109.13 We turn now to the issue of whether Mr. Bennett has 

standing to assert a Fifth Amendment challenge.

_____________________________________________________________

9 UTAH R. CIV. P. 54(b)

10 Id. (emphasis added).

11 Ron Shepherd Ins. Inc. v. Shields, 882 P.2d 650, 653 n.4 (Utah 

1994).

12 Id.

13 We decline to resolve this issue on appeal as we recognize that 

the trial court will be in a far better position to weigh the particular 

circumstances of the case. We note only that, given the result we 

(Continued)
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Opinion of the Court

11

II. Mr. Bennett Has Standing to Assert His Fifth Amendment Claim

¶ 22 After oral argument in this case, we asked the parties to 

brief the question of whether Mr. Bennett had established that he 

had standing to assert his Fifth Amendment claim, in order to ensure 

that we had jurisdiction.14 After reviewing the parties‘ briefs and the 

record in this case, we conclude that Mr. Bennett has established 

standing under the standard articulated in Brown v. Division of Water 

Rights.

15 As we discuss in the next section, Mr. Bennett has 

established that issues of material fact exist as to whether he was 

compelled to provide incriminating information as part of the BCCC 

program. Thus, Mr. Bennett has established ―a reasonable 

probability‖ of an injury16 that has at least ―some causal 

relationship‖ with ―the governmental actions and the relief 

requested.‖17 And because a judicial order reinstating Mr. Bennett‘s 

parole and forbidding the alleged unconstitutional questioning 

would redress Mr. Bennett‘s alleged injury18—the violation of his 

Fifth Amendment rights in the program—Mr. Bennett has 

established each prong of our three-part standing test.19 We turn 

 

reach in this case today, there exist issues of fact that remain to be 

resolved upon remand.

14 See Brown v. Div. of Water Rights, 2010 UT 14, ¶¶ 12–13, 228 P.3d 

747 (holding that standing is a jurisdictional issue that ―raise[s] 

fundamental questions regarding a court‘s basic authority over the 

dispute‖).

15 Id. ¶¶ 14–15, 17 (noting that standing requires a party to 

establish ―injury, causation, and redressability,‖ which is ―evaluated 

under the standard used for a dispositive motion at the relevant 

stage of litigation‖).

16 Id. ¶ 19.

17 Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983).

18 See id. (stating that standing requires a plaintiff to establish that 

―the relief requested is substantially likely to redress the injury 

claimed‖).

19 Cf. United States v. Antelope, 395 F.3d 1128, 1132–33 (9th Cir. 

2005) (holding that a probationer‘s Fifth Amendment claim was 

justiciable because ―the government violated his Fifth Amendment 

right when it conditioned his probation and supervised release on 

the submission of a sexual autobiography that we may assume 

would have revealed prosecutable offenses‖).
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Opinion of the Court

12

now to our analysis of the merits of Mr. Bennett‘s Fifth Amendment 

claim.

III. Genuine Issues of Material Fact Exist as to Mr. Bennett‘s 

Fifth Amendment Claim

¶ 23 The Fifth Amendment of the United States Constitution 

guarantees that no person ―shall be compelled in any criminal case 

to be a witness against himself.‖20 The protections offered by the 

Fifth Amendment extend beyond the context of a criminal trial, 

granting an individual the right ―not to answer official questions put 

to him in any . . . proceeding, civil or criminal, formal or informal, 

where the answers might incriminate him in future criminal 

proceedings.‖21 And this right is not lost by conviction and 

incarceration. Indeed, the United States Supreme Court has 

specifically held that ―[a] defendant does not lose [Fifth 

Amendment] protection by reason of his conviction of a crime; 

notwithstanding that a defendant is imprisoned or on probation at 

the time he makes incriminating statements.‖22 Thus, Mr. Bennett 

retains the rights guaranteed by the Fifth Amendment throughout 

his incarceration and any periods of parole.

¶ 24 Whether Mr. Bennett may properly invoke the Fifth 

Amendment to avoid answering questions depends on whether he 

can satisfy a two-prong test: ―(1) that the testimony desired by the 

government carried the risk of incrimination . . . , and (2) that the 

penalty he suffered amounted to compulsion.‖23 Because Mr. 

Bennett‘s claim was dismissed on summary judgment, he must 

establish that genuine issues of material fact exist as to both of these 

prongs. We discuss each in turn, beginning with whether the BCCC 

program‘s questioning carried a risk of incrimination and ending 

with whether the revocation of parole for refusing to answer 

incriminating questions amounts to compulsion. We conclude that 

Mr. Bennett has demonstrated issues of material fact as to both 

prongs and reverse the grant of summary judgment.

_____________________________________________________________

20 U.S. CONST. amend. V.

21 Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (citation omitted).

22 Id.

23 United States v. Antelope, 395 F.3d 1128, 1134 (9th Cir. 2005)

(citations omitted).
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Opinion of the Court

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A. There Are Issues of Material Fact as to Whether Mr. Bennett’s 

Disclosures in the BCCC Program Would Be Incriminatory

¶ 25 The first prong of the Fifth Amendment analysis asks 

whether ―the testimony desired by the government carried the risk 

of incrimination.‖24 The trial court did not address this prong of the 

analysis in making its decision, instead relying entirely on cases 

addressing the issue of compulsion: McKune v. Lile25 and State v. 

Pritchett.

26 In its brief responding to Mr. Bennett, the State likewise 

did not argue that the BCCC questioning posed no risk of 

incrimination, even though Mr. Bennett had argued that he did 

indeed face a risk of incrimination due to the program‘s requirement 

that he disclose charged and uncharged sex crimes. Instead, the State 

rested its argument entirely on its claim that, even if the required 

information was incriminating, Mr. Bennett was not compelled to 

provide the information. Accordingly, the State has effectively 

conceded that an issue of fact exists as to whether the BCCC 

questioning posed some risk of incrimination. This position is 

understandable given the low bar necessary to establish such a risk.27

_____________________________________________________________

24 Id. (citations omitted).

25 536 U.S. 24 (2002).

26 2003 UT 24, 69 P.3d 1278.

27 The United States Supreme Court ―has always broadly 

construed [Fifth Amendment] protection to assure that an individual 

is not compelled to produce evidence which later may be used 

against him.‖ Maness v. Meyers, 419 U.S. 449, 461 (1975). Accordingly, 

the definition of what constitutes ―incriminating‖ information is 

broad: ―[t]he protection does not merely encompass evidence which 

may lead to criminal conviction, but includes information which 

would furnish a link in the chain of evidence that could lead to 

prosecution, as well as evidence which an individual reasonably 

believes could be used against him in a criminal prosecution.‖ Id.

Therefore, ―[n]ot much is required . . . to show an individual faces 

some authentic danger of self-incrimination . . . , as the privilege 

 ̳extends to admissions that may only tend to incriminate.‘‖ United 

States v. Rivas-Macias, 537 F.3d 1271, 1278 (10th Cir. 2008) (citation 

omitted) (quoting Emspak v. United States, 349 U.S. 190, 197 (1955)). 

And the witness need not specifically identify how an answer to a 

question would be incriminating, as ―it need only be evident from 

the implications of the question, in the setting in which it is asked, 

(Continued)
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Opinion of the Court

14

¶ 26 The State did cursorily suggest in its supplemental briefing 

on standing that because the BCCC program director, 

Mr. Greenberg, stated that Mr. Bennett was warned to not provide 

incriminating information as per program policies, there was no risk 

of incrimination.28 Even if we were to permit the State to raise this 

issue for the first time by way of supplemental briefing on a 

jurisdictional issue and to assume it to be adequately briefed, all the 

director‘s statement does is establish that an issue of fact remains as 

to what Mr. Bennett was required to disclose. Mr. Greenberg‘s 

statement that the BCCC program does not require offenders to 

―disclose identifying information such as the victim‘s name . . . the 

nature of the relationship with the victim, or where the abuse took 

place‖ is specifically contradicted by the Victim Form and Victim 

Narrative. These reports require offenders to disclose the victim‘s 

name (possibly limited to only the first name), the relationship 

between the victim and the offender (such as ―your sister or brother 

or . . . your wife or girlfriend‖), how the offender met and became 

aware of the victim, how the offender exerted control over the victim 

(such as by using a relationship like ―she [was] your granddaughter 

[or] a stepchild‖), and where the abuse took place. We therefore hold 

that Mr. Bennett has established that a genuine issue of material fact 

exists as to the first prong of the Fifth Amendment analysis—

whether he faced a risk of incrimination. We turn now to the second 

prong of the test: whether Mr. Bennett has established that an issue 

of fact exists as to whether he was compelled to answer the 

potentially incriminating questions.

B. There Are Issues of Material Fact as to Whether Mr. Bennett Was 

Compelled to Provide the Incriminatory Information

¶ 27 The Fifth Amendment protection against self-incrimination 

does not extend to all circumstances in which the State asks 

incriminating questions. Instead, it applies only when the State 

 

that a responsive answer to the question or an explanation of why it 

cannot be answered might be dangerous because injurious 

disclosure could result.‖ Hoffman v. United States, 341 U.S. 479, 486–

87 (1951). Ultimately, we will uphold the invocation of the Fifth 

Amendment unless it is ― ̳perfectly clear, from a careful 

consideration of all the circumstances in the case, that the witness is 

mistaken, and that the answer(s) cannot possibly have such 

tendency‘ to incriminate.‖ Id. at 488 (citations omitted).

28 The State raised this point to argue that Mr. Bennett could not 

satisfy the injury prong of our standing test. See supra Part II.
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Opinion of the Court

15

―threaten[s] to inflict potent sanctions unless the constitutional 

privilege is surrendered.‖29 There must be some ―attempt, regardless 

of its ultimate effectiveness, to coerce a waiver of the immunity.‖30

Of course, the Fifth Amendment ―does not prohibit all penalties 

levied in response to a person‘s refusal to incriminate himself,‖ as 

only ―some penalties are so great as to  ̳compe[l]‘ [incriminating] 

testimony.‖31 Thus, the second prong of the Fifth Amendment 

analysis requires us to determine whether the State has either 

explicitly or implicitly threatened to impose some penalty that ―rises 

to a level where it is likely to  ̳compe[l]‘ a person  ̳to be a witness 

against himself.‘‖32

¶ 28 The question before us is whether Mr. Bennett faced a threat 

of a significant penalty—revocation of his parole—and whether that 

penalty rises to the level of compulsion. As to the first question, the 

United States Supreme Court has indicated that there is an express 

or implied threat of revocation of probation33 when the state imposes 

as a condition of probation an ―obligation that [the probationer] 

refrain from raising legitimate objections to furnishing information 

that might lead to his conviction for another crime.‖34 Thus, we must 

look to whether Mr. Bennett has established that an issue of fact 

remains as to whether his parole was conditioned on his waiver of 

any Fifth Amendment claims regarding the information that was 

requested.

¶ 29 When the record and all inferences are viewed in the light 

most favorable to Mr. Bennett, we believe that there is a dispute of 

fact as to whether the State actually threatened Mr. Bennett with 

revocation of parole for the invocation of the Fifth Amendment.

Mr. Bennett alleges that the BCCC program director, Mr. Greenberg, 

explained why Mr. Bennett‘s first parole was revoked by stating, 

_____________________________________________________________

29 Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977).

30 Id. at 806 (citation omitted).

31 McKune v. Lile, 536 U.S. 24, 49 (2002) (O‘Connor, J., concurring)

(first alteration in original).

32 Id.

33 As we discuss below, we see no significant difference between 

probation and parole and accordingly conclude that the Supreme 

Court‘s guidance is applicable here.

34 Minnesota v. Murphy, 465 U.S. 420, 437 (1984).
BENNETT v. BIGELOW

Opinion of the Court

16

―[y]ou claimed a Fifth Amendment right. When you do that you 

can‘t complete the program.‖ This allegation colors Mr. Bennett‘s 

second parole and attempt in the program—the attempt at issue in 

this case—because the Warrant Request & Parole Violation Report 

submitted by the State after Mr. Bennett‘s initial therapy session

recommended that Mr. Bennett‘s second parole be revoked because 

he was acting in the same way as he did during his first parole and 

was failing again to meet program expectations.

35 Thus, there is a 

reasonable inference that Mr. Bennett‘s second parole was 

conditioned, as was his first, on a requirement that he answer 

questions without raising a Fifth Amendment claim.36

¶ 30 This inference is supported by the other portions of the 

Report. The Report details that during the therapy session, Mr. 

Bennett acknowledged that he had been informed ―many times‖ that 

―he [was] not expected to provide any identifying information that 

would trigger a duty to report‖ and that he was being required only 

to ―disclose age and gender of the victim and the deviant sexual acts 

he perpetrated.‖ Although the record is clear that Mr. Bennett was 

warned not to give the name of the victim, the State does not define 

what information was considered ―identifying‖—and thus not 

required—and what information was considered necessary to 

explain ―the deviant sexual acts [Mr. Bennett] perpetrated.‖ And 

_____________________________________________________________

35 The Report stated: ―This was Mr. Bennett‘s second parole. He 

has only been on parole for approximately 10 days. His first parole 

was violated for similar type behavior [sic] and an unwillingness to 

comply with sex offender treatment and parole expectations.‖ 

36 See USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 38, 235 P.3d 749 

(holding that creation of an inference from an undisputed fact can 

create a genuine issue of fact sufficient to preclude summary 

judgment). We note that the record contains an allegation that Mr. 

Bennett‘s second parole was expressly conditioned on his surrender 

of his Fifth Amendment claim. In his verified petition, Mr. Bennett 

alleged that during the therapy session in his second attempt in the 

program, ―[t]he therapist made it clear to [him] that in order to 

successfully complete the [B]CCC sex offender program [he] must 

agree to abandon [his] legal position about self-incrimination and 

provide a self-incriminating full disclosure.‖ But Mr. Bennett failed 

to cite this allegation in his opposition to the State‘s motion for 

summary judgment below, and accordingly we cannot consider it as 

part of his argument on appeal. We refer to this allegation only to 

highlight the factual issues that remain to be resolved on remand.
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Opinion of the Court

17

given the explicit disclosure requirements discussed above, we 

cannot say that the program‘s disclosure requirements—even limited 

as suggested by the Parole Violation Report—did not bear some risk 

of incrimination.37 Thus, despite Mr. Bennett‘s acknowledgement of 

the limited disclosure requirements during his second attempt in the 

program, when the record and all inferences are viewed in the light 

most favorable to Mr. Bennett, there remains an issue of fact whether 

a condition that Mr. Bennett participate in a program with the 

acknowledged limitations effectively conditioned Mr. Bennett‘s 

parole on his waiver of his Fifth Amendment claim.38

_____________________________________________________________

37 For example, if Mr. Bennett were required to indicate that he 

obtained control over his victims in order to perform his deviant acts 

by using his familial relationship with the victim, this information, in 

connection with the age and gender of the victim, could ―tend to 

incriminate.‖ Emspak v. United States, 349 U.S. 190, 197 (1955). And 

the circumstances of the questioning, when combined with Mr. 

Bennett‘s reluctance to respond even after the instruction to not 

provide a name, suggest that it would be reasonable to infer that 

truthful answers to even the limited questions could potentially 

reveal incriminating information. See United States v. Von Behren, 822 

F.3d 1139, 1145 (10th Cir. 2016) (―Given his reluctance to submit to 

the polygraph, we infer that Mr. Von Behren‘s answers to these 

questions would reveal past sex crimes.‖); United States v. Antelope, 

395 F.3d 1128, 1135 (9th Cir. 2005) (―Based on the nature of this 

[sexual polygraph] requirement and [Mr.] Antelope‘s steadfast 

refusal to comply, it seems only fair to infer that his sexual 

autobiography would, in fact, reveal past sex crimes.‖).

38 Cf. Von Behren, 822 F.3d at 1150 (holding that the state 

threatened a sex offender with revocation of supervised release by 

conditioning the release on successful completion of a sex offender 

treatment program that required an offender to truthfully respond 

during a polygraph test); Antelope, 395 F.3d at 1138–39 (9th Cir. 2005) 

(same); United States v. York, 357 F.3d 14, 24–25 (1st Cir. 2004) 

(holding that there was no threat of revocation of supervised release 

because the court construed a condition of the release as prohibiting 

revocation based on a valid assertion of the Fifth Amendment); 

United States v. Lee, 315 F.3d 206, 212 (3d Cir. 2003) (holding that 

there was no threat of revocation because the offender‘s probation 

was not conditioned on a waiver of Fifth Amendment claims).
BENNETT v. BIGELOW

Opinion of the Court

18

¶ 31 There is a similar dispute of fact as to whether the State 

would necessarily revoke Mr. Bennett‘s parole for failing to waive 

his Fifth Amendment claim. The State points to Mr. Greenberg‘s 

affidavit, wherein he stated that while the BCCC staff offer 

recommendations about parole status, such recommendations are 

not binding on the Board, which is the ultimate decision maker. Mr. 

Greenberg also claimed that the Board has ―paroled sex offenders 

where a treatment staff‘s recommendation has been against parole, 

and the Board has continued incarceration where staff has 

recommended parole.‖ Mr. Bennett responds by pointing to the fact 

that completion of the BCCC (or other similar) sex offender 

treatment program has been an express condition of both of his 

paroles. And failure to adequately discuss uncharged sexual conduct 

because of his Fifth Amendment claim has caused Mr. Bennett to fail 

the program on two separate occasions, leading to the revocation of 

his parole in both instances. Accordingly, there are issues of fact as to 

whether the State threatened to revoke Mr. Bennett‘s parole for 

refusing to waive his self-incrimination claim.

¶ 32 Even assuming that the State threatened Mr. Bennett with 

the revocation of his parole in order to encourage him to waive his 

Fifth Amendment rights, however, the question remains as to 

whether such a threat rises to the level of compulsion. As we discuss 

below, we join the Ninth and Tenth Circuits in concluding that the 

threat of revocation of the conditional liberty interest obtained by a 

parolee does rise to the level of compulsion. Accordingly, we hold 

that Mr. Bennett has established that a genuine issue of material fact 

exists as to whether he was compelled to offer incriminatory 

testimony.

¶ 33 The State‘s entire argument rests on its assertion that 

Mr. Bennett cannot claim that the revocation of parole is compulsory 

because he has no constitutional or other inherent right to parole.39

Although this is true, it is beside the point. The question before us 

today is whether the State can permissibly revoke parole once it is 

given, not whether the State could have permissibly withheld the 

opportunity for parole in the first place. ―There is a crucial 

distinction between being deprived of a liberty one has, as in parole, 

_____________________________________________________________

39 See Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994) (―Not only 

is there no constitutional or inherent right to receive parole prior to 

the expiration of a valid sentence, but, absent state standards for the 

granting of parole, decisions of a parole board do not automatically 

invoke due process protections.‖).
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Opinion of the Court

19

and being denied a conditional liberty that one desires.‖40 Although 

―[p]arole is not absolute liberty as all law-abiding citizens enjoy, but 

only conditional liberty dependent upon compliance with parole 

restrictions,‖41 it is a liberty interest ―that warrants constitutional 

protection.‖42As the United States Supreme Court has recognized:

Though the State properly subjects [a parolee] to many 

restrictions not applicable to other citizens, his 

condition is very different from that of confinement in 

a prison. . . . [T]he liberty of a parolee, although 

indeterminate, includes many of the core values of 

unqualified liberty and its termination inflicts a 

 ̳grievous loss‘ on the parolee and often on others.43

Thus, there is an important distinction between a decision to grant or 

deny parole to an inmate and a decision to revoke parole once 

granted.

¶ 34 This distinction renders inapposite the majority of the cases 

relied upon by the trial court and the State. The trial court‘s decision 

was based on a United States Supreme Court case, McKune v. Lile,

44

and our own case, State v. Pritchett.

45 The State likewise relies on 

those cases and also cites a number of cases from other jurisdictions. 

These cases are all centered in the ―prison context‖46 and suggest 

that denial of certain benefits in prison may not necessarily rise to the 

level of compulsion.47 For example, in McKune, a plurality of the 

_____________________________________________________________

40 Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 9 

(1979).

41 Ward v. Smith, 573 P.2d 781, 782 (Utah 1978).

42 Linden v. State, Dep’t of Corr., 2003 UT App 402, ¶ 13, 81 P.3d 

802.

43 Morrissey v. Brewer, 408 U.S. 471, 482 (1972).

44 536 U.S. 24 (2002).

45 2003 UT 24, 69 P.3d 1278.

46 McKune, 536 U.S. at 40 (stating that constitutional principles 

―are not easily extended to the prison context‖) (Kennedy, J., 

concurring)).

47 See, e.g., DeFoy v. McCullough, 301 F. App‘x 177, *3–*4 (3d Cir. 

2008) (holding that a denial of reparole for failure to admit to sex 

offenses during treatment did not constitute compulsion); Searcy v. 

(Continued)
BENNETT v. BIGELOW

Opinion of the Court

20

United States Supreme Court rejected the argument ―that the denial 

of discrete prison privileges for refusal to participate in a [prerelease, in-prison] rehabilitation program amounts to 

unconstitutional compulsion.‖48 Likewise, in Pritchett, we held that a 

statute that ―requires [an inmate] to admit the offense for which he 

has been convicted in order to be considered for probation‖ did not 

violate the Fifth Amendment.49 But the question of what types of inprison benefits may be denied or revoked without violating the Fifth 

Amendment—a question that has not yet been fully answered by 

this court or the United States Supreme Court50—is not before us 

today. Thus, the cases relied upon by the State simply do not address 

the question that we must decide: whether the revocation of parole—

as opposed to the disqualification of an inmate for a grant of 

parole—qualifies as compulsion.

¶ 35 The case that does control this issue is the United States 

Supreme Court case of Minnesota v. Murphy,

51 where the Court 

recognized that revocation of probation qualifies as compulsion. In 

that case, Mr. Murphy pleaded guilty to a reduced charge of false 

imprisonment in connection with a prosecution for criminal sexual 

conduct.52 He was released on probation, which required that he 

participate in a sex offender treatment program and report to a 

 

Simmons, 299 F.3d 1220, 1226–27 (10th Cir. 2002) (holding that a 

requirement that an inmate complete a sex offender treatment 

program that requires incriminatory information or face denial of 

good-time credits and other privileges did not qualify as 

compulsion); Ainsworth v. Staley, 317 F.3d 1, 4–6 (1st Cir. 2002) 

(holding that requiring convicted sex offenders to disclose histories 

of sexual misconduct as part of an in-prison program in order to 

qualify for parole did not constitute compulsion).

48 McKune, 536 U.S. at 40 (Kennedy, J., concurring). 

49 2003 UT 24, ¶¶ 27, 36.

50 See McKune, 536 U.S. at 30–31, (Kennedy, J., concurring) 

(agreeing that the transfer from a medium-security unit to a 

maximum-security unit is not compulsion, but leaving unresolved 

whether an extension of the inmate‘s term of incarceration or a 

denial of the ability to earn good-time credits or qualify for parole 

would amount to compulsion).

51 465 U.S. 420 (1984).

52 Id. at 422.
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Opinion of the Court

21

probation officer.53 His failure to comply with any of these 

conditions could result in a probation revocation hearing.54 During 

treatment, Mr. Murphy admitted to committing a rape and murder.55

His counselor informed the probation officer of the admissions, who 

set up a meeting with Mr. Murphy.56 During the meeting, the officer 

told Mr. Murphy about the information she had obtained, and Mr. 

Murphy admitted that the information was true.57 The officer later 

obtained an arrest warrant, and Mr. Murphy was eventually charged 

with first-degree murder.58

¶ 36 Ordinarily, a witness ―must assert the privilege rather than 

answer if he desires not to incriminate himself.‖59 Despite having 

never invoked the Fifth Amendment during treatment or his 

meeting with the probation officer, Mr. Murphy ―sought to suppress 

testimony concerning his confession on the ground that it was 

obtained in violation of the Fifth and Fourteenth Amendments.‖60

He argued that ―[b]ecause revocation of his probation was 

threatened if he was untruthful with his probation officer, . . . he was 

compelled to make incriminating disclosures instead of claiming the 

privilege.‖61 The Supreme Court agreed that the failure to invoke the 

Fifth Amendment could be excused so long as the state has ―sought 

to induce [the witness] to forgo the Fifth Amendment privilege by 

threatening to impose economic or other sanctions  ̳capable of 

forcing the self-incrimination which the Amendment forbids.‘‖62

¶ 37 The Court then discussed whether the threat of revocation 

of probation rises to the level of compulsion. It ultimately concluded 

―that if the state, either expressly or by implication, asserts that 

invocation of the privilege would lead to revocation of probation, it 

_____________________________________________________________

53 Id.

54 Id.

55 Id. at 423.

56 Id.

57 Id. at 423–24.

58 Id. at 424–25.

59 Id. at 429.

60 Id. at 425.

61 Id. at 434.

62 Id. (citation omitted).
BENNETT v. BIGELOW

Opinion of the Court

22

would have created the classic penalty situation, the failure to assert 

the privilege would be excused, and the probationer‘s answers 

would be deemed compelled.‖63 Thus, the Court recognized that 

requiring a probationer to surrender his Fifth Amendment right 

against self-incrimination in order to retain his probation constitutes 

compulsion. Despite this conclusion, the Court ultimately held that 

Mr. Murphy had not actually been threatened with revocation of his 

parole during his meeting with his probation officer, and thus his 

confession was admissible.64

¶ 38 Murphy provides clear direction that guides our analysis: the 

threat of revocation of the conditional liberty interest attendant to 

probation constitutes compulsion. Both the Ninth and Tenth Circuits

have considered Murphy‘s direction to be controlling in factual 

scenarios virtually identical to the one before us, holding that the 

threat of revocation of probation or supervised release for refusal to 

make self-incriminating disclosures in a sex offender treatment 

program constitutes compulsion.65 The State urges us, however, to 

_____________________________________________________________

63 Id. at 435.

64 Id. at 438–39 (―[Mr.] Murphy was not expressly informed 

during the crucial meeting with his probation officer that an 

assertion of the privilege would result in the imposition of a penalty. 

And the fact that [Mr.] Murphy apparently felt no compunction 

about adamantly denying the false imprisonment charge on which 

he had been convicted before admitting to the rape and murder 

strongly suggests that the  ̳threat‘ of revocation did not overwhelm 

his resistance.‖).

65 See Von Behren, 822 F.3d at 1150 (holding that a threat of 

revocation of supervised release based on a Fifth Amendment 

challenge to a sex offender treatment program like the one at issue 

here constituted unconstitutional compulsion under Murphy); 

Antelope, 395 F.3d at 1138 n.4 (holding that the case before it, 

involving a probationer who was required to disclose incriminating 

information in a treatment program as part of his probation, was the 

―classic penalty situation‖ discussed in Murphy). Although we are 

not bound to follow precedent from the circuit courts of appeal on 

questions of federal constitutional law, the reasoning in these cases is 

persuasive and confirms the correctness of our interpretation of the 

United States Supreme Court‘s Fifth Amendment jurisprudence.
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Opinion of the Court

23

not follow this precedent, pointing to a case by the Indiana Supreme 

Court, Bleeke v. Lemmon,

66 that reached a different conclusion.

¶ 39 In Bleeke, the Indiana Supreme Court considered whether a 

threat of revocation of parole could be considered compulsion under 

the Fifth Amendment.67 Although the court recognized that under 

both Murphy and its own precedent, the revocation of probation 

constitutes compulsion,68 it distinguished these cases based on its 

conclusion that probation is distinguishable from parole. In the 

court‘s view, probation ―is a matter of judicial grace and discretion 

as a deliberate sentencing alternative to be imposed in lieu of 

incarceration‖ while parole ―is a substitution during the continuance 

of the parole, of a lower grade of punishment, by confinement in the 

legal custody and under the control of the warden.‖69 Thus, the court 

reasoned that parole is simply a privilege akin to a transfer to a 

minimum security prison that does not alter the length of the term of 

incarceration, meaning that revocation of parole has no significant 

effect on the parolee, and that probation, on the other hand, is a 

substitution for incarceration, and thus the revocation of probation 

has the legal effect of altering a defendant‘s sentence and extending 

the amount of time an individual is incarcerated.70 The court 

therefore concluded that the differences between parole and 

probation were significant enough to justify distinguishing Murphy

and holding that the revocation of parole does not constitute 

compulsion.71

¶ 40 The State urges us to make this same distinction and hold 

that Murphy‘s reasoning does not extend beyond probation. But the 

distinction between probation and parole is one without a significant 

legal difference. The United States Supreme Court has noted that it 

cannot perceive ―any difference relevant to the guarantee of due 

process between the revocation of parole and the revocation of 

_____________________________________________________________

66 6 N.E.3d 907 (Ind. 2014).

67 Id. at 935–40.

68 See id. at 935–37 (discussing Murphy and Gilfillen v. State, 582 

N.E.2d 821 (Ind. 1991)).

69 Id. at 937–38 (citation omitted).

70 See id. at 937–39.

71 Id. at 939–40.
BENNETT v. BIGELOW

Opinion of the Court

24

probation.‖72 And Utah courts have likewise treated probation and 

parole proceedings similarly.73 Both are a form of supervised release 

that confers upon the individual a virtually identical conditional 

liberty interest. Both are provided as an alternative to incarceration, 

though the timing and procedures for each differ, and the revocation 

of either probation or parole has the practical effect of increasing the 

amount of time a defendant must be incarcerated. We do not find the 

distinction relied upon by the Indiana Supreme Court persuasive. 

Accordingly, though we agree with the Indiana Supreme Court‘s 

interpretation of Murphy that the revocation of probation constitutes 

compulsion, we do not find persuasive its distinction between 

probation and parole. Thus, we disagree with its conclusion that 

Murphy‘s reasoning should not be applied to revocation of parole. 

¶ 41 Accordingly, we hold that a threat to revoke a defendant‘s 

parole constitutes compulsion for purposes of the Fifth Amendment. 

And as Mr. Bennett has established an issue of fact as to whether he 

was actually threatened with revocation if he did not surrender his 

Fifth Amendment claim and provide incriminating information, the 

trial court erred in granting summary judgment. We therefore 

reverse the trial court‘s grant of summary judgment and remand for 

further proceedings.

¶ 42 Our opinion today should not be viewed as a rejection of the 

valid and important rehabilitative purposes of sex offender 

treatment programs such as the BCCC. It is well established that ―sex 

offenders [often] repeat their past offenses, and informed counseling 

can only help protect them, their potential victims, and society. The 

irreconcilable constitutional problem, however, is that even though 

the disclosures sought here may serve a valid rehabilitative purpose, 

they also may be starkly incriminating. . . .‖74 Although the State 

argues that our decision today will undermine the purposes and 

effectiveness of sex offender treatment programs, a compelling state 

_____________________________________________________________

72 Gagnon v. Scarpelli, 411 U.S. 778, 782, 782 n.3 (1973) (―Despite 

the undoubted minor differences between probation and parole, the 

commentators have agreed that revocation of probation where 

sentence has been imposed previously is constitutionally 

indistinguishable from the revocation of parole.‖).

73 See, e.g., Baine v. Beckstead, 347 P.2d 554, 557 (Utah 1959); State v. 

Jarman, 1999 UT App 269, ¶¶ 6–7, 987 P.2d 1284; State v. Byington, 

936 P.2d 1112, 1115–16, 1116 n.2 (Utah Ct. App. 1997).

74 Antelope, 395 F.3d at 1137–38.
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Opinion of the Court

25

interest does not outweigh an individual‘s Fifth Amendment 

rights.75 The Supreme Court, recognizing this problem, suggested 

the solution in Murphy: ―[A] state may validly insist on answers to 

even incriminating question and hence sensibly administer its 

probation system, as long as it recognizes that the required answers 

may not be used in a criminal proceeding and thus eliminates the 

threat of incrimination.‖76 Given the circumstances of Mr. Bennett‘s 

case—that he has received a life sentence for prior sex crimes—it 

would seem that the State‘s need to retain the ability to further 

prosecute Mr. Bennett is significantly less than its need to ensure that 

it is both wise and safe to release him on parole. But without 

immunity, the State cannot require Mr. Bennett to choose between 

incriminating himself and losing his parole.

Conclusion

¶ 43 The trial court erred in refusing to consider Mr. Bennett‘s 

second request for counsel. It also erred in granting summary 

judgment because issues of fact remain as to whether Mr. Bennett‘s 

Fifth Amendment rights were violated by the requirement that he 

comply with the BCCC program. There are genuine disputes of 

material facts as to whether the questions posed to Mr. Bennett bore 

a risk of incrimination and whether the circumstances in which those 

questions were posed constituted compulsion. Accordingly, we 

reverse the decision of the trial court and remand for further 

proceedings. 

_____________________________________________________________

75 See id. at 1134–35 (―[C]ountervailing government interests, such 

as criminal rehabilitation, do not trump [the Fifth Amendment] 

right. Thus, when  ̳questions put to [a] probationer, however 

relevant to his probationary status, call for answers that would 

incriminate him in a pending or later criminal prosecution,‘ he may 

properly invoke his right to remain silent.‖ (citation omitted)).

76 Murphy, 465 U.S. at 435 n.7.