(dissenting) — I respectfully dissent on two grounds: the State improperly used Edward King’s disclosure of past crimes against him in violation of the Fifth Amendment; and the State’s revocation of his suspended sentence arbitrarily deprived him of that process due under the law. I would reverse the ruling of the superior court and grant King’s personal restraint petition.
I. THE FIFTH AMENDMENT
At the threshold, I disagree with the majority that Pens v. Bail, 902 F.2d 1464 (9th Cir. 1990) is distinguishable from this case. The majority makes much of the footnote in Pens that Pens’ habeas corpus petition arose only because he had not already been sentenced. See id. at 1464 n.l. As the majority reads Pens, what distinguishes the two cases is that the trial judge had not yet given Pens an original sentence when his confessions were used against him, whereas King had been sentenced before commitment. Pens’ disclosures, therefore, could not be used to aggravate his sentence without violating his Fifth Amendment rights, while King’s could. What the majority fails to appreciate about Pens, however, is that Pens’ habeas corpus petition did not concern his original sentence. Pens’ *534petition concerned the exceptional sentence imposed by the Indeterminate Sentence Review Board. So does King’s.
The United States District Court in Pens had held that "the Board violated Pens’ fifth amendment right against self-incrimination by imposing an exceptional minimum sentence based on statements Pens made during post-conviction, court-ordered, confidential therapy.” Id. at 1464-65 (emphasis added). The Ninth Circuit affirmed the district court’s holding and agreed that an exceptional minimum sentence may not be based on statements the petitioner had made in post-conviction, court-ordered, confidential treatment. Id. at 1466. The court found that Pens’ confessions had been used to "enhance his sentence despite representations of confidentiality and requirements of cooperation to participate in the court-ordered treatment program” and concluded that Pens’ admissions and confessions were "squarely within the privilege” of the Fifth Amendment. Id. For the majority in this case to hold that Pens does not apply because King had already been sentenced while Pens had not is to emphasize a difference without a distinction. Both Pens and King filed their petitions on the basis of the exceptional sentences imposed upon them by the Indeterminate Sentence Review Board. These exceptional sentences were based upon confessions the two made during treatment at Western State Hospital. Neither concerned the original sentence imposed by the trial court. Pens is therefore directly on point and this court should adopt its reasoning in this case.
By utilizing King’s confessions to enhance his minimum sentence, the State violated his Fifth Amendment right not to incriminate himself. The Fifth Amendment applies to the states through the Fourteenth Amendment. State v. Warner, 125 Wn.2d 876, 885, 889 P.2d 479 (1995). Normally, a person must affirmatively invoke the protections of the amendment. However, there are two situations where the privilege against self-incrimination is said to be "self-executing” and the person need not invoke the privi*535lege in order to benefit from its protections. State v. Post, 118 Wn.2d 596, 605, 826 P.2d 172, 178, 837 P.2d 599 (1992). These two situations are (1) custodial interrogation by a state agent pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966); and (2) situations where the assertion of the privilege would be penalized by the State. Warner, 125 Wn.2d at 884. The penalty situation was clearly present in King’s case.
The penalty exception to the invocation requirement is available only if (1) the person gives answers that would incriminate him or her in a separate criminal proceeding, and (2) the State expressly or impliedly asserts that invoking the Fifth Amendment privilege will result in penalties, either by economic loss or by a deprivation of liberty. Post, 118 Wn.2d at 610.
It is difficult to imagine how anyone could fail to see that King’s confession to 55 rapes could incriminate him in a separate criminal proceeding if one were brought.5 In King’s case, the questions asked of him as part of his treatment at Western State Hospital required him to give *536answers that would and did incriminate him and which were improperly used to enhance his minimum sentence. Moreover, when King confessed to 55 rapes he left open the possibility of additional criminal prosecutions because these rapes were not ones he had already pleaded guilty to or been charged with. King, therefore, amply satisfied the first requirement of the penalty exception.
As to the second requirement, there was a clear and express assertion on the part of the State through its representatives at Western State that if King refused to disclose his earlier crimes, he would be penalized by revocation of his suspended sentence. In its discussion of the program at Western State, the Ninth Circuit in Pens concluded "[f]ull confession and cooperation [with the sex offender program] were represented as necessary for successful treatment and eventual release.” Pens, 902 F.2d at 1465. In King’s case, this fact was brought out at the hearing before the superior court by Maureen Saylor, the sex offender program coordinator and a sex offender consultant for Western State Hospital. She (apparently) testified that a patient’s continued participation in the program was dependent on his full confession of past sexual crimes.6 Her testimony reflects that a failure to confess to past *537crimes would result in a transfer back to superior court and the inevitable revocation of his suspended sentence. In short, King could either confess and stay in the program, or refuse and grow old and probably die in prison. The State expressly asserted that if King exercised his Fifth Amendment privilege, he would be heavily penalized. See Post, 118 Wn.2d at 610.
Moreover, the record supports King’s claim that he was coerced into confessing his crimes with false promises of confidentiality. In its opinion in Pens, the Ninth Circuit found that the patients at Western State were informed that their disclosures were confidential: "The WSH therapists assured Pens information he revealed during treatment would not be disclosed to the courts.” Pens, 902 F.2d at 1465. In its Findings of Fact and Conclusions of Law, the superior court in this case appeared to reach a different result based upon the report of Barry Charon and the testimony of Maureen Saylor; however, its findings7 fail to necessarily and specifically distinguish between warnings and disclosures pertaining to the intake report and warnings and disclosures in group therapy *538almost one-and-a-half years later. These are critical distinctions.
In his written report of his intake interview with King on February 16, 1982, Mr. Charon, the therapy supervisor at Western State, began by writing: "I advised Mr. King that information furnished for this report would be used for the purposes of determining sexual psychopathy and could be made available to the court if the court requested. I informed him that rules of confidentiality do not apply.” Transcript of the Proceedings (RP) (3/5/92) at 68 (emphasis added). This excerpt says nothing about using any information for any reason other than determining sexual psychopathy, and it is expressly limited to information supplied "for this report,” i.e., the report based on the February 16, 1982 interview. It was not a blanket declaration that any information provided by Mr. King at any time could be used for any purpose. This, however, was exactly the meaning attributed by the superior court to this written excerpt.
Moreover, Mr. Charon was nowhere to be found for the hearing in superior court, and the trial court only had his *539hearsay written statement before it. RP (3/5/92) at 67. This written report was admitted into evidence by the trial judge and was read into the record by Saylor. RP (3/5/92) at 68. This report was signed by Charon, not King. There was no evidence King even saw it. The report—a statement made outside of the ongoing hearing—was offered by the State as evidence of the truth of the matters asserted therein, namely, that King had been informed the rules of confidentiality did not apply. See ER 801. Charon’s letter could be used by any evidence professor in any law school as a pristine example of hearsay. I find it distressing that King’s liberty hinged in part on a piece of evidence whose accuracy was unchallengeable and whose author was unavailable for cross-examination.
In addition, basing such a conclusion upon Charon’s report is completely illogical. King’s intake interview took place on February 16,1982. Clerk’s Papers (CP) at 172. On April 2, 1982, Western State Hospital informed the King County Superior Court of King’s status as a sexual psychopath based on this report. CP at 173. On May 6, 1982, the King County Superior Court ordered King to be committed to Western State Hospital. CP at 174.
Had this been the end of King’s movement through the system, Charon’s warning, if indeed there had been one, could conceivably still have applied. King still had much more traveling to complete, however, before he finally settled in at Western State. On May 7, 1982, the Snohomish County Superior Court sentenced King to three consecutive 20-year sentences for his rape convictions there and he was ordered to prison. CP at 174. Therefore, on November 11, 1982, King was discharged from Western State and transferred to the custody of the Department of Corrections. CP at 174. On May 12, 1983, pursuant to a stipulation between King and Snohomish County, King agreed to be subject to the jurisdiction of King County with respect to his Snohomish County convictions, which were suspended on the same terms and conditions as his King County sentences. CP at 174. On June 2,1983 (almost *540one-and-a-half years after the initial report in a different proceeding), King was readmitted to Western State Hospital for re-evaluation as a sexual psychopath and for possible treatment. Sometime between June 2, 1983 and August 24, 1983, King admitted to staff members at Western State that he had committed approximately 40 to 50 rapes in addition to the ones for which he was convicted. CP at 175.
One year and three months had passed between the time King was supposedly warned of the lack of confidentiality for information he supplied for the February 1982 report and King’s confession. In that period, King had been incarcerated at Western State twice, been in custody of the Department of Corrections once, and likely been kept in the King and Snohomish County jails numerous times. If King interpreted the warning given at the beginning of his intake interview as still in effect all those months later, he was not paying attention to the literal language of the warning, assuming it was communicated to him in the first place.
Maureen Saylor testified she subjectively believed the normal rules of confidentiality did not apply to the sex offender program. RP at 126-27. She also testified, however, that there was no written policy concerning confidentiality at the program.8 There was no testimony that this "unwritten rule” was ever effectively communicated to the patients at Western State.
*541The problem is the sexual psychopathic program, in which King was a "patient,” was designed and maintained for therapy and treatment, not to meet minimum constitutional requirements of criminal procedure. These therapists and mental health professionals were there to treat disorders but demonstrated little inclination for, much less expertise in, the law. If anything, mental health professionals normally espouse confidentiality as an imperative for a successful relationship between patient and therapist, which is precisely the opposite from normal criminal procedure:
Effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. . . . [T]he mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. ... [A] psychiatrist’s ability to help her patients "is completely dependent upon [the patients’] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure . . . patients of confidentiality and, indeed, privileged communication.
Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996) (quoting Advisory Committee’s Notes to Proposed Rules, 56 F.R.D. 183, 242 (1972) (holding that federal law recognizes a privilege that protects confidential communications between psychotherapist and patient and that this privilege extends to communications to licensed social workers as well)).
King presented evidence that staff at the hospital repeatedly assured him and at least four other members of the program that what they disclosed during their treatment would be kept confidential. There was no substantial evidence to the contrary. This is very consistent with the therapeutic model upon which the program was based. Indeed, two witnesses testified that they were told explicitly "[t]hat what went on in group stayed in group.” RP (3/5/92) at 31, 39. King also presented an affidavit *542that states that he was required to take polygraphs, and that if the tests showed a deception, he would be returned to the courts. Ex. 4, Affidavit of Edward Lee King (1/27/89). Even if the superior court completely disregarded all of King’s evidence, there was no substantial evidence to support the contrary proposition. At the very least, this evidence demonstrated the state of mind of the patients at Western State. See ER 803(a)(3). The testimony of these men is not inherently untrustworthy, since some of these patients had already been released and no evidence was presented as to any sense of esprit de corps among sexual psychopaths that would cause them to present false testimony.
The State violated King’s right to be free from self-incrimination by using his confessions to enhance his minimum sentence. By using his confessions after threatening to penalize him if he did not confess, the State absolved King from his affirmative duty to invoke the Fifth Amendment privilege. Moreover, King was effectively coerced into confessing by false promises of confidentiality from the staff at Western State. For these reasons, I believe King’s personal restraint petition should be granted by this court, and probably will be by another.
II. DUE PROCESS
Mr. King is a violent criminal and a serial rapist; however, once he entered the criminal justice system the primary responsibility to provide that process due him under the law passed to the State. Both the prosecuting authorities and the trial courts elected to treat Mr. King as a sick man rather than a criminal who should be held personally accountable for his conduct. Absent an appeal from the original judgments, the state’s election was irrevocable and vested Mr. King with certain legal rights arising from that judgment.
When the trial courts, with the prosecutors’ agreement, suspended Mr. King’s sentence they knew King was, by all accounts, a deliberate criminal who put a good deal of *543thought into his crimes in order to minimize the chances he would be caught.9 From the large number of victims, it is clear that his precautions were initially quite successful. Not only was King not apprehended for these crimes at first, but another man was falsely accused and convicted for a rape that King had committed. CP at 124. It was only due to the efforts of reporter Paul Henderson, who eventually won a Pulitzer Prize for his series of stories on this miscarriage of justice, that this unfortunate human being was vindicated, over the objections of the prosecutors. See Don Duncan, Promises to Keep—The Wrong Man, Seattle Temes, Oct. 8, 1989 at 8.
It is clear King committed his crimes because he enjoyed raping and could get away with it. Despite overwhelming evidence of King’s coldly rational approach to crime, the King County Prosecuting Attorney’s Office induced a guilty plea to avoid a trial by recommending a sentence suspended on condition of successful completion of the sexual psychopathy program. This promised King the opportunity to avoid prison. CP at 7. The sentencing judge accepted this recommendation and reduced it to a judgment, which was binding not only on King but also the State. CP at 13.10 "A plea bargain is a binding agreement between the defendant and the State. . . .” State v. Tourtellotte, 88 Wn.2d 579, 584, 564 P.2d 799 (1977).
King was then admitted to the sex offender program in *5441982 for a 90-day period of evaluation pursuant to the King County court order. CP at 46. The staff at Western State concluded that he was a sexual psychopath.11 CP at 46. While the State was not cognizant of the full extent of King’s sexual crimes, it was well aware that he had been sentenced to five 20-year sentences for committing violent rapes. If anything, to follow "psychiatric logic,” King’s undisclosed rapes would make him an even better candidate for this program because it enhanced his credentials as a sexual psychopath beyond any doubt. In contrast, those who maintained their innocence (even truthfully so) were not eligible.
The sex offender program consisted of three phases: an average of 24 months of inpatient treatment, a minimum of three months of work release, and a minimum of 18 months of outpatient treatment. Washington Legislative Budget Comm., Sex Offender Programs at Western and Eastern State Hospitals, Rep. No. 85-16, at 2 (1985). The inpatient phase of the treatment revolved around group therapy and consisted of techniques such as role-playing, "psycho-drama,” and industrial and recreational therapy. Id. at 16-17. In addition to such social activities, the Western State program also utilized "mastubatory reconditioning” as a behavioral modification technique.12 *545In order to monitor a patient’s progress, a lab existed on the premises that utilized a penile plethysmograph.13
The inpatient treatment program contained 10 steps. Id. at 18. Once these steps were completed, the patient would request a discharge from the inpatient phase by completing a discharge contract, which would list the conditions under which the patient would live in the work release and outpatient portions of the program. Sex Offender Programs, supra, at 18. The request would be voted on by the patient’s group, approved by his therapy supervisor, and approved by the program staff. Id. Finally, the offender would return to court and, with the court’s approval, be placed on probation under the terms of the discharge contract. Id. King made good progress throughout the program, completed the requirements of the inpatient phase, and reached the point when work release would normally occur. CP at 109, 127. But while King was progressing, the program itself was deteriorating. By the time King’s progress through the program was reviewed by staff members in January 1986 (CP at 175), the program *546at Western State had undergone some major shocks. On February 28, 1985, an inmate at the program, described by staff members as "extremely dangerous,” escaped by running out of the hospital gymnasium and was not recaptured until almost a year later. Id. at 40. One-half hour after the escape, the entire program at Western State was "grounded.”14 Id. The grounding soon eroded the morale of both the staff and patients. Id. at 47.
In December 1985, the Legislative Budget Committee released its performance audit of the Sex Offender Programs. The results of the audit were almost uniformly negative. The audit found that there were "significant, and perhaps even critical problems within the Sex Offender Program at Western State Hospital.” Id. at 4. The audit found that the program had failed to keep up with advances in treatment, the staff was overburdened, and morale was extraordinarily low. Id. The report concluded that "[gjiven these circumstances, it is difficult to imagine that any type of effective treatment is going on within the program.” Id. The auditor recommended that the program should be continued only if the legislature were to allocate enough funds to make significant improvements, and, that absent such an increase, there was little justification for continuing the program. Id. at 8. In addition, after 16 escapes from 1980 to 1986, media attention began to grow and the legislature began to reassess the effectiveness of the program, particularly in regard to safety concerns in the area neighboring Western State. See Bruce Taylor, Lawmakers Focus on Sex-Crime Escapees, Seattle Times, B7 (Mar. 9, 1986).
It was in this atmosphere that King’s case was referred back to the superior court for revocation of his suspended sentence. RP (3/5/92) at 99.
It seems by mid-1985 King had failed to live up to *547expectations by successfully completing all the steps in the program. RP (3/5/92) at 89. The staff was then prepared to refer him back to the superior court for work release. RP (3/5/92) at 89. However, King’s immediate treatment supervisor and the treatment staff recognized the implications of King’s release and paid a long-time state consultant, Irwin Dreiblatt, Ph.D., to write a report on King’s progress. RP (3/5/92) at 90. Dreiblatt had been employed by Western State as a consultant since 1980. RP (3/5/92) at 90. Dreiblatt’s report basically faults King for doing well at the treatment and holds up King’s very success in the program as an example of his unsuitability for work release:
.... Although an active and successful participant in the Western State program, one is left with a sense that Ed has decided that the fastest way to freedom is to excel in the Sex Offender Program.
Ed is very intelligent and verbally facile. There can be no question that intellectually he has mastered the concepts taught at the Sex Offender Program. . . .
There is no question that Ed has made strides in the program. However there is little integration of this intellectual learning and other affective or internal changes which must occur. . . .
.... If the program is to work for eventual release, it would be my recommendation that this man’s effort to be a "star pupil” and rapidly work through the program be thwarted and frustrated. Mr. King needs to understand that more subtle and difficult to define personality and affective changes must first occur. I predict that with such frustration, Mr. King’s behavior [sic] will errode [sic] somewhat. In my judgment, such stress in his situation will produce important working material. . . .
CP at 117-18 (emphasis added). Even despite such "assessment,” Dreiblatt still recommended King’s application for *548work release status be reevaluated within 12 months. CP at 119.15
Citing Dreiblatt’s report, staff members wrote to the King County Superior Court stating ". . . Dr. Dreiblatt confirmed our suspicious [sic] and supported our bias that Mr. King had not truly integrated the treatment he had received.” CP at 110. The staff continued that "[i]t is extremely unfortunate that treatment did not make any significant impact on his cognitive thought process and his affect.” Id. Finally, the staff concluded "there is nothing more we can offer Mr. King and recognized [sic] that it was pointless to retain him any further.” Id. Even contrary to Dreiblatt’s report, however, the staff recommended that "Mr. King be incarcerated for the maximum time allowed which would provide immediate protection for the community from further victimization. Since we do not believe we have been able to really 'change’ Mr. King, then the best alternative is incarceration.” CP at 110-11.
King was then returned to prison, where he still remains, upon a trial court determination that King had failed to "successfully complete” the sexual psychopathy program, even though he successfully completed all the tasks required of him at Western State and he was a "star pupil.”
King urges another plausible interpretation of these facts. The State knew King was a serial rapist when he came to them. Thanks to Henderson’s reports on the false arrest of another man for one of King’s crimes, King himself was an extremely high profile individual. As the public began to become aware of what went on at Western State, and the legislature began to look into the porous security of the place, it is apparent that the program could not afford another public relations disaster. Release of the *549"look-alike rapist” after so short a time would have likely brought more opprobrium upon the beleaguered program. In an effort to avoid such an event, the staff went to the trouble of calling in its long-standing consultant to evaluate King outside of the normal course of treatment. The anticipated report penalizes King for doing well in the program and even goes so far as to recommend that the staff attempt to frustrate King’s attempts at rehabilitation. In short, King was removed from the program and sent to prison to avoid a public relations disaster.
As to Dreiblatt’s recommendations, Michael Comte, a former assistant director of the Western State program, wrote: "Dr. Dreiblatt’s input was solicited and his findings and conclusions are contained in his evaluation. There are moral and ethical questions that are rather obvious.” CP at 127. Perhaps Comte’s reference was to a therapist’s recommendation that hospital staff actively interfere with a patient’s attempt to comply with his treatment program.
In fairness, King jumped through the hoops and climbed the ladders the State wanted him to climb. King kept his end of the bargain, but the State arbitrarily refused to do what it had promised. The revocation of King’s suspended sentence resulted from the violation of the State’s implicit commitment to him: to allow him, in good faith, to complete the program. King’s suspended sentence was revoked simply because he was arbitrarily discharged from the program.
"Due process requires governments to treat citizens in a fundamentally fair manner.” Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 636, 733 P.2d 182 (1987), superseded by statute as stated in Noble Manor Co. v. Pierce County, 81 Wn. App. 141, 913 P.2d 417 (1996). "The purpose of the constitutional guaranty of due process of law is to protect the individual from the arbitrary exercise of the powers of government.” State v. Cater’s Motor Freight System, 27 Wn.2d 661, 667, 179 P.2d 496 (1947). This guaranty applies to all citizens, no matter how repulsive their acts. In a plea agreement the defendant *550gives as consideration for the state’s pledge his constitutional rights to a jury trial, to confront witnesses, confront one’s accusers, to remain silent, and be convicted beyond all reasonable doubt. Tourtellotte, 88 Wn.2d at 583. The terms of the plea agreement are defined by what the defendant reasonably understood them to be when he entered his plea. State v. Cosner, 85 Wn.2d 45, 51-52, 530 P.2d 317 (1975). King was entirely justified in believing that if he pleaded guilty the State would allow him to progress through the program treatment phases and be released if he acted on his opportunity to successfully complete the program.
King’s confessions to additional rapes were required portions of his treatment. It is fundamentally unfair for the State to require King to confess as a portion of the treatment it devised for him, and then penalize him for complying with this treatment. It is unfair for the State to work against a patient in its care. It is unfair for the State to say one thing, and then do another when it comes , to a man’s liberty. If the State wished to avoid King’s premature release into the population, it should have sentenced him to prison in the first place and not induced King to waive his rights to a trial by promising more than it was prepared to deliver. The State had no business delivering King into the hands of therapists unless it was prepared to follow the result of that therapy to its logical conclusion: release. And these therapists had no business removing King from the program under these circumstances. Due process requires King enjoy the natural result of the trial court’s original sentencing judgment for which he bargained away his constitutional right to a trial on his guilt. The State’s ex post facto incarceration of King violated our nation and state’s most basic traditions of equity and our basic constitutional guaranties of due process when he called the State’s bluff by successfully completing the program.
I dissent.
King’s situation is different from that of the defendant in Post because Post’s statements had related to crimes he had committed and for which he had already pleaded guilty or been convicted. See Post, 118 Wn.2d at 611. King’s case is much more analogous to Warner, 125 Wn.2d at 876. In that case, as in King’s, there was a realistic threat of incrimination in a separate criminal proceeding at the time the person made the statements because the revelation concerned previously unknown and uncharged criminal conduct. Note that the separate criminal proceeding with which these statements are concerned need not have resulted in a trial or conviction. All a defendant must establish is "a reasonable belief that there was the potential for incrimination.” Post, 118 Wn.2d at 610. The proper consideration in such cases is not whether the prosecution occurred, or even if it was likely to occur, but whether the declarant reasonably believed that the disclosure could he used in a criminal prosecution or could lead to other evidence that might be so used. Mace v. Amestoy, 765 F. Supp. 847, 851 (D. Vt. 1991) (citing Kastigar v. United States, 406 U.S. 441, 445, 92 S. Ct. 1653, 1656, 32 L. Ed. 2d 212 (1972)). "Once the potential for incrimination is shown, the person need not show an intention on the part of the government to commence a criminal prosecution. . . . Making the protection of the Fifth Amendment hinge on the likelihood of prosecution 'would nullify the privilege.’ . . . The petitioner could not possibly assess the likelihood of prosecution which is totally dependent upon the discretion of the state’s attorney. . . . 'The petitioner should not be left to the good intentions of the state when forced to incriminate himself or face incarceration.’ ” Mace, 765 F. Supp. at 851-52 (citations omitted).
Q. [by Mr. Pox] If a person refused to answer any questions about their sexual history for fear of incrimination, it is as though they would be expelled from the program; is that correct?
A. [by Ms. Saylor] Yes, because we cannot treat something that somebody had already talked about [sic]. We were not in an adversarial role. They were there for treatment, we needed to gather data to be able to treat them. They are— criminality had been adjudicated.
Q. If someone requested the right to remain silent, you would have taken some measures with them, you would say that they were not cooperating with the treatment?
A. If someone was refusing to talk about what they were going to be done [sic], we would refer them back to court to not being treat—[sic]
Q. And have their probation revoked and sent to prison?
A. Whatever the court said.
Transcript of the Proceedings (RP) (3/5/92) at 125.
I. FINDINGS OF FACT
5. During the February 16, 1982 meeting with King, Barry Charen [sic] [a therapy supervisor at Western State Hospital] advised King that information furnished for the [intake psychosocial assessment] report would be used for the purpose of determining sexual psychopathy, and could be made available to the court if the court requested. Mr. Charen [sic] also advised King that the rules of confidentiality did not apply.
6.....To facilitate treatment, staff members encouraged patients to disclose incidents of past sexual deviancy during group discussion. The Hospital staff informed patients that their disclosures in group would be confidential from third parties such as spouses, friends and relatives, but that such disclosures would not be confidential from the courts, its officers or agents. . . .
19. On October 16, 1989, the Court of Appeals transferred [King’s personal restraint] petition to this court for a hearing on the merits pursuant to RAP 16.11(b). The Court of Appeals specifically asked this court to answer three questions: (1) whether Petitioner was warned whether his admissions could be used against him; (2) whether he was advised that his admissions would be kept confidential; and (3) whether he was informed that fully admitting his crimes was a treatment requirement.
*53820. This court answers the above three questions as follows: (1) Petitioner was warned that his admissions could be used against him; (2) Petitioner was not advised that his admissions would be kept confidential from the courts, its officers or agents; and (3) Petitioner was informed that fully admitting his crimes was a treatment requirement. King was under a misunderstanding as to the limits of confidentiality. He thought his disclosures at Western State Hospital would be confidential from everyone, but in fact, he was advised that they were confidential only from third parties such as spouses, friends, and relatives. . . .
n. CONCLUSIONS OF LAW
2. King’s disclosures at Western State Hospital that he committed approximately 50 rapes in addition to the ones of which he was convicted were not confidential from the court system, its officers or agents. The Board was part of the court system so that King’s disclosures were not confidential from the Board.
5. The case of Pens v. Bail, 902 F.2d 1464 (9th Cir. 1989) is not applicable to this case because the Pens Court assumed that Pens’ disclosures at Western State Hospital were confidential. The issue of confidentiality was not litigated in the Pens case.
Clerk’s Papers (CP) at 171-79.
Q. [by Mr. Pox] But in terms of confidentiality of the treatment component of your program, do you have any record or knowledge of any rules regarding confidentiality being in writing?
A. [by Ms. Saylor] Not in writing. It was repeatedly discussed, clarified, and I doubt that any therapists that work there for any length of time was not very clear on what their rules of confidentiality were.
Q. There was an oral rule, correct?
A. Again, I do not have anything written presently that attests to that. It certainly was real clear to everyone who was involved.
RP (3/5/92) at 127-28.
For instance, King committed his first rape after reading a newspaper article that implied that many rape victims failed to report the crimes because they felt ashamed, dehumanized, and humiliated by the experience. CP at 105. King avoided physically harming his victims beyond the rape because he believed they would then be less likely to go to the authorities. CP at 114. In his attacks, however, he felt it important to do something humiliating to the victims because he felt this also would make them less likely to report the crime. CP at 114. In another move calculated to avoid detection, he preyed largely on hitchhikers and prostitutes. CP at 114.
The statute that originally addressed the treatment of sexual psychopaths defined the condition as " 'any person who is affected in the form of psychoneurosis or in a form of psychopathic personality, which form predisposes such person to the commission of sexual offenses in a degree constituting him a menace to the health or safety of others.’ ” Washington Legislative Budget Comm., Sex Offender Programs at Western and Eastern State Hospitals, Rep. No. 85-16, at 10 (1985).
Before lie could begin the program, however, King appeared in Snohomish County Superior Court where he pleaded guilty to three charges of first degree rape. CP at 104. He received three consecutive 20-year sentences. CP at 33. King was returned to the King County jail and then to the Washington State correction center and then to the Washington State penitentiary, where he remained for five months. CP at 105. After testifying against a fellow inmate (CP at 27), the Snohomish County Superior Court, pursuant to a stipulation of the parties, entered an order suspending the Snohomish County sentence on condition that King comply with the conditions of his King County sentence, namely, successfully complete the sex offender program, and that jurisdiction for the Snohomish County case be assumed by the King County Superior Court. CP at 61. On June 2,1983, King was readmitted to Western State for inpatient treatment. CP at 105.
The 1985 Legislative Budget Committee report described this method of treatment as follows:
"Procedurally, the technique involves having the offender develop a written masturbation fantasy which must be approved by the therapy supervisor prior *545to its use. Emphasis is placed on developing appropriate relationships within the fantasy; ie. the fantasy may not merely detail a particular sexual behavior, it must also include preparatory activity similar to a typical "date” which might ultimately lead to consenting sexual behavior with a given partner. On each ward there are private rooms where an individual can have privacy to engage in mastubatory reconditioning. As a safeguard, each offender is expected to speak his fantasy out loud into a tape recorder as he masturbates. This works to insure that the individual will stick to the appropriate fantasy, rather than "flashing” on a deviant fantasy. As with all treatment activities, the offender is expected to discuss these activities with his group and note any problems he may encounter in the process.”
Sex Offender Programs, supra, at 17-18.
A penile plethysmograph
"attempts to measure physiological indications of sexual arousal in response to particular stimulus materials. The individual is placed in a room and a mercury strain gauge is placed around the penis so that the circumference of the penis can be measured. . . |T]his mercury strain gauge is capable of measuring slight increases in circumference, many times before they are noticeable to the man himself. The individual is then presented with sequential stimulus materials, auditory and visual, encouraging him to think about and look at materials indicative of sexual activity with different ages of people, different genders and different sexual activities.”
State v. Spencer, 119 N.C. App. 662, 665, 459 S.E.2d 812, 814-15 (1995).
Grounding entailed the suspension of work assignments and ground privileges for the patients. Sex Offender Programs, supra, at 40.
Michael Comte, a former assistant director of the sex offender programs, was employed by King at this time to tender his evaluation of King’s progress. Comte recommended immediate work release. Comte’s recommendation was "[a] two year commitment to work release would be ideal, but one year may be all that is necessary.” CP at 131.