Criminal Justice

Erectile testing as condition of sex offender's supervised release is too invasive, 2nd Circuit says

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A Vermont sex offender treatment program that involves penile stimulation treatment as a condition for supervised release has been criticized by the New York City-based 2nd U.S. Circuit Court of Appeals, on the grounds it is “extraordinarily invasive.”

The appeal was filed by David McLaurin, who was convicted of producing child pornography, the Associated Press reports. His filing questions the use of “plethysmograph examinations,” which according to the Oct. 3 opinion (PDF) involve a device attached to a man’s penis while he views pornographic images or videos. The device monitors blood flow to the penis while the images are viewed.

“The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images,” the opinion states.

It also notes that the testing was developed by a Czech psychiatrist and used by the Czech government as a way to identify and “cure” homosexuals.

McLaurin in 2011 was arrested for violating the federal Sex Offender Registration and Notification Act, which requires offenders to register and keep current their address information. He pleaded guilty to one count of violating SORNA, according to the opinion, and received a sentence of 15 months imprisonment with five years of supervised release.

The government argued that the plethysmograph examinations are a useful form of treatment for sex offenders who have a high recidivism rate.

The opinion notes that at sentencing, the government acknowledged that McLaurin was unlikely to re-offend. His original 2001 conviction, which was in Alabama, involved photos of his 13-year-old daughter with her breasts exposed. According to the opinion, the girl told authorities she requested the photos for her modeling career.

McLaurin later moved to Vermont. The opinion notes that he informed sex offender registry officials about his current address, but failed to file the proper paperwork.

According to the opinion, the sentencing judge “observed in a generalized way” that the plethysmograph testing requirements were important conditions in regards to SORNA cases and sex offender registration. The judge also found that the testing was “relevant to diagnosis and evaluation in the future.”

“We fail to see any reasonable connection between this defendant, his conviction more than a decade ago, his failure to fill out paperwork, and the government-mandated measurement of his penis,” the opinion states. It vacates the condition of supervised release for McLaurin and remands the matter to district court for further proceedings.

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