When former state Senate hopeful Eric R. Bodenweiser testified at his child rape trial last year, he swore he did not force a youngster to repeatedly have sex with him more than a quarter-century ago. The trial ended in a hung jury.
When he pleaded “no contest” in March to two counts of unlawful sexual contact and was put on probation, Bodenweiser didn’t admit to sex crimes, only that he would not fight the state’s accusations.
Authorities have since charged him with violating probation because he has refused to to speak candidly about his crime, both in a lie detector test and group therapy sessions ordered by corrections officials.
Bodenweiser, on his lawyer’s advice, has asserting his Fifth Amendment right against self-incrimination because he fears being charged with perjury over his trial denials. Bodenweiser’s stance has set up a legal battle with constitutional implications for Delaware.
Bodenweiser, now 56, “made a very conscious decision at trial to perjure himself,” prosecutor David Hume IV wrote in an email this month to defense attorney Joseph A. Hurley. He “created this situation and he will have to deal with the consequences.”
Hurley has since argued in a 12-page motion that decisions in other state and federal courts have consistently upheld the right of criminals and suspects, even convicted sex offenders, to remain silent about potentially incriminating information.
In one Texas case (Dansby v State), the court ruled it appropriate to invoke the Fifth Amendment privilege “during required sex offender therapy sessions,” Hurley wrote. “He can not be forced to confess to criminal behavior in any context, whether during a polygraph exam or during group therapy.”
The issue raised by the dispute is a novel one that could go to the state Supreme Court, where official policy requires sex offenders who are on probation to engage in treatment that can include group therapy or polygraph testing, said Thomas J. Reed, professor emeritus at Widener University School of Law.
“Can the need to comply with sex offender therapy trump your Fifth Amendment rights?” Reed said. “If you don’t answer, you are violated and you are going to jail. That’s a policy choice and nobody has said it’s unconstitutional. This is an important test.”
Since Hurley filed his motion on June 8, the state has not budged on the probation violation, but has backpedaled on its insistence that Bodenweiser be candid during treatment about the acts that led to his conviction.
In his response to Superior Court Judge E. Scott Bradley, prosecutor Hume acknowledged that the purpose of the polygraph was to “obtain information” about the crimes for which he is on probation. Bodenweiser “appropriately” took the Fifth on that issue but still must undergo the polygraph “to obtain a lifetime sexual history” so a treatment plan can be developed.
Hume wrote that the polygraph questions “can be tailored to be sufficiently broad” so Bodenweiser can answer “without risking future prosecution.” In addition, he can take the Fifth during group session when asked if he committed the crime but must join in the rest of the sessions.
Failure to participate in the polygraph or group treatment would subject him to future violations, wrote Hume. A hearing on the current probation violation is pending.
‘That would be false’
Known as “Bodie,” the name of the convenience stores and coin-operated laundromats his family once owned in Sussex County, Bodenweiser was a high-flying Tea Party candidate for the state Senate in 2012 before his political hopes were derailed by the sexual abuse allegations.
In September 2012, Bodenweiser toppled popular incumbent Joe Booth in the Republican primary and appeared headed for victory in November in the conservative district that includes Georgetown, Bridgeville and Millsboro.
A Georgetown resident who is married with a grown daughter, Bodenweiser ran as a moral and fiscal conservative Christian who abhorred homosexuality and opposed gay marriage. He promoted his work as a “middle school volunteer” and mentor for Big Brothers Big Sisters.
Two years earlier, he had fallen 120 votes short of winning the seat even after his brother created a website that denigrated his faith, business experiences and family life, calling him an “evil person.”
His 2012 campaign disintegrated within days of the primary, however, after Bodenweiser’s victim alleged in a posting on a news website that “this so called God Fearing Man Molested me for several yrs” inside his home in Frankford.
Authorities investigated and Bodenweiser dropped out of the race. That October he was indicted on 113 felony counts – 39 charges of first-degree unlawful sexual intercourse and 74 counts of second-degree unlawful sexual contact. By the time a jury deliberated after his two-week trial in May and June 2014, prosecutors had pared down the charges to 15 counts.
Bodenweiser’s victim, now in his late 30s, testified about repeated sexual advances and assaults.
“I couldn’t understand why it kept happening and why he wanted me to do these things,” the man said in court. “I thought something was wrong with me.”
In the early spring of 1987, the accuser testified, Bodenweiser forced him to perform oral sex for the first time. In two later encounters, he said Bodenweiser made him submit to anal sex. He came forward after years of silence, the man testified, because he was alarmed that Bodenweiser was about to become a state lawmaker.
Hurley’s cross-examination revealed inconsistencies in the man’s stories to police and prosecutors, and Bodenweiser vehemently denied abusing him. Bodenweiser told jurors he never exposed the boy to anything more salacious than pornographic movies a few times, which he blamed on “bad judgment.”
Asked by Hurley if he had sex with the youngster, the defendant said, “That would be false.”
Under cross-examination by Hume, Bodenweiser clung to his denials, simply answering, “No,” when the prosecutor asked, “Were you attracted to young men at that time?”
After the jury declared itself deadlocked on Bodenweiser’s guilt or innocence, Judge Bradley declared a mistrial but prosecutors decided to pursue a retrial.
The credibility of the victim, already an issue after the first trial, became an even bigger issue in late February after he pleaded guilty to unlawfully possessing a shotgun that Hurley contends was meant to threaten or harm him. Judge Bradley ruled that in the retrial, scheduled for April, Hurley could cross-examine the man and police “regarding threats made against” him and the resolution of “the weapons charge.”
On March 18, Bodenweiser pleaded nolo contendere, also called “no contest,” to two counts of third-degree unlawful sexual contact, a misdemeanor. According to Delaware Superior Court rules specify that means the defendant is “guilty without admission” since he enters it “without admitting the essential facts constituting the offense.”
Prosecutor John Donahue said during the plea hearing he believed the state could convince a jury Bodenweiser “touched the genitalia” of the victim on two occasions between October 1987 and May 1991.
At sentencing in April, Bradley gave Bodenweiser one year in prison, suspended for probation. He also ordered Bodenweiser to undergo a sexual disorders evaluation and comply with counseling and treatment recommendations, as well as register as a Tier 1 sex offender. Tier 1 is the lowest of three levels.
Hurley had earlier asked Bradley to waive a requirement to have Bodenweiser register as a sex offender because of two decade-plus gap between the offenses and the indictment, writing that Bodenweiser believed he would be forced to “acknowledge vile activities that he stridently denies.”
‘Refused to take polygraph’
Less than three weeks after sentencing, Bodenweiser found himself in the position he and Hurley hoped to avoid.
On May 5, counselor Robert Gingrich of Zion Treatment Recovery, which has the state contract to evaluate and treat sex offenders, concluded Bodenweiser was “in denial” about his sex crimes and told him to take a polygraph exam, court records show.
Gingrich said in an interview that he could not discuss Bodenweiser but stressed that “disclosure is critical” for sex offenders, who must take responsibility for their crimes. “If we have an individual who for whatever reason says, ‘I didn’t do that’ or ‘I don’t want to talk about it,’ what do you treat?”
Hurley countered that the Delaware program headed by Gingrich’s firm forces people to go into group therapy “and describe to eight or nine other” details of your crimes “and get slapped around and asked, ‘Why did you do it.’ ”
Since Bodenweiser denied the crimes at trial and his plea was not an admission, “my concern was that it would be taken it out of context and the state would now say that he committed perjury,” Hurley said.
Hurley said he advised Bodenwesier that he could discuss other aspects of his sexual history but nothing about the victim from his court case. Hurley did seek immunity for Bodenweiser in advance of the lie detector test, for which the probationer paid $240, but on May 27 Hume formally denied the request.
“We are not going to offer Bodenweiser any form of immunity,” Hume wrote in an email. “We will not validate his decision to lie to a jury by granting him immunity.”
On May 28, Bodenweiser “refused to take the polygraph,’’ probation officer Daniel M. Welsh wrote. Welsh immediately issued a warrant for Bodenweier’s arrest. He spent one night at Sussex Correctional Institution and the next day was freed after posting $9,000 cash bail.
Jason Miller, spokesman for the state Department of Correction, which oversees probation, said: “Mr. Bodenweiser has refused to submit to that test, and therefore is non-compliant with his treatment program.”
Hurley said Bodenweiser has since attended a therapy session but when he again refused to discuss the crime, “he was kicked out.”
Gingrich countered in a memo to probation officials that beyond “pleading the 5th” when asked about this crime at his first group session, Bodenweiser “has been uncooperative’’ at three such sessions.
During the rest of the sessions, he “continued to look at his watch, roll his eyes and sigh.’’ The only time he took part was when another sex offender spoke about being evicted from his home, and Bodenweiser told him that “what was done to him was illegal.”
Bodenweiser needs the polygraph tests because “it is a vital part of the treatment process,’’ Gingrich wrote. “We are of the firm belief that our secrets keep us in an offending cycle.” ..Source.. by Cris Barrish