Court: Sex offender should not be subject to penile test

October 4, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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The United States 2nd Circuit Court of Appeals in Manhattan has ruled that penile testing is an “extraordinarily invasive” condition to the supervised release of a convicted sex offender.

David McLaurin, an Alabama resident, was convicted in 2001 for taking topless photos of his 13-year daughter for what McLaurin insisted was a photo shoot to help her modeling career. By pleading guilty of child pornography, McLaurin became subject to the rules and regulations of the federal Sex Offender Registration and Notification Act (SORNA), which requires offenders to “register, and keep the registration current, in each jurisdiction” in which they live.

McLaurin, in 2011, moved from Alabama to Vermont after serving a few months in prison, and failed to properly fill out paperwork for the Vermont sex offender registry.  McLaurin was arrested for violating SORNA and sentenced to 15 months behind bars and five years supervised release — one condition of release being that McLaurin may be subjected to “plethysmograph examinations, as directed by the probation officer.”

McLaurin appealed his sentence, in particular the plethysmograph examination condition of his supervised release — his appeal was heard by a three-judge panel of the United States 2nd Circuit Court of Appeals.

Honorables Guido Calabresi and Barrington Daniels Parker, Jr, writing for the court, explained that penile plethysmography is a two-hour test, previously used by the Czechoslovakian government to determine and “cure” homosexuality, that “involves placing a pressure sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.”

Regardless of the crime committed, the court reminded, a person “retains his humanity” and the right to be to be protected for the government’s invasion of one’s “personal immunities.”

Looking at the facts of McLaurin’s particular case, the court had to determine whether or not the requested penile plethysmography, a condition of release, which is a “sufficiently serious invasion of liberty,” served any compelling government interest such as deterrence and protection of the public.

Here, the invasion of McLaurin’s privacy satisfied neither of those government interests.  The government argued that plethysmography
is a useful form of correctional treatment for sex offenders who have an unusually high recidivism rate.  However, that argument didn’t persuade the circuit court of appeals as the sentencing court in Vermont had previously ruled that McLaurin was “unlikely to reoffend again.”

Finding further voids in the government’s recidivism argument, the court found that to “consider the purported correlation between increasing penis size and recidivism to be strong, the correlation would be irrelevant.”

“If the point is deterrence, this would seem a perversion, in both senses of the word, of that goal,” Brooklyn Law School Professor Bennett Capers told the Brooklyn Daily Eagle in analyzing the court’s decision.

The circuit court of appeals did acknowledge a governmental interest in protecting the public but found a “clear distinction between penis measurement and other conditions of supervised release which are reasonably calculated [to accomplish that goal].” Restrictions on where sex offenders live and their interactions with children are reasonable, however, “[t]here is a line at which the government must stop. Penile plethysmography testing crosses it,” the court wrote, citing case precedent.

“The Second Circuit was understandably squeamish about the idea of showing a defendant child pornography and monitoring the blood flow to his penis and the extent of any erection, as a condition of his supervised release,” noted Capers.

“This was a well-reasoned opinion,” Brooklyn criminal defense attorney David Hernandez told the Brooklyn Daily Eagle. “The plaintiff had not been rearrested for any sexual crimes for 10 years, so in this particular case, the condition of his release was particularly invasive.”

“Indeed, one of the foundational principles of criminal law is that we don’t punish people for their thoughts alone, and this type of monitoring was essentially that, monitoring his mind to make sure certain images didn’t arouse him,” said  Capers. “If this case had involved a recidivist child molester claiming to be rehabilitated, then maybe this type of testing would fly.  But this case involved a defendant who’s only prior conviction was for photographing his teenage daughter topless in 2001, and who’s current conviction—the basis for the erection monitoring—was for neglecting to complete sex offender registry paperwork after orally notifying authorities of his presence. “

The court ultimately ruled that the plethysmography involved a great deprivation of McLaurin’s liberty and vacated the condition of supervised release.

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