You don’t often see federal courts striking down conditions of supervised release as violations of substantive due process. But you don’t often see the federal government wanting to hook up a device to a man’s penis, make the man watch pornography, and see what happens. It sounds a bit… 1984 (affiliate link).

I couldn’t help noticing this opinion, given its unusual nature and its focus on the peen. I’m sure you’re all dying to learn more about the procedure known as “penile plethysmography.” (The good news: it’s not as bad as a penile embolism or penile degloving.)

You know you want to see what those Second Circuit judges are hiding underneath their robes. Let’s dig a little deeper (into the opinion), shall we?

Having a sex-related offense on your record can really make your life unpleasant, for years after you’ve served your time in prison. It could, for example, cause you to lose your summer associate position at a top firm (even if your only “crime” was having a consensual relationship with a younger student while in high school).

Take the case of David McLaurin. He took topless photos of his teenage daughter, at his daughter’s request, to advance her modeling career. For this offense, he got sentenced to producing child pornography. He served his prison sentence (most of which was suspended).

Years later, he ran into problems complying with the federal Sex Offender Registration and Notification Act (SORNA). After pleading guilty to a single count of violating SORNA, he got sentenced to fifteen months in prison and five years of supervised release. The sentencing judge imposed, over McLaurin’s objection, the condition that he participate in sex offender treatment that could include penile plethysmographic examinations.

What’s that? You can check out the surprisingly detailed Wikipedia article, or you can read the Second Circuit’s opinion (jointly authored by two out of the three judges on the panel, Judge Guido Calabresi and Judge Barrington Parker; I wonder why they didn’t just make this a per curiam) (citations omitted):

Penile plethysmography is a procedure that lasts two to three hours and “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.” The Government disputes whether, as others have described, the test requires a subject to masturbate to establish a baseline for measurement.

Here at ATL, we have no problem with hand-to-wiener contact. Indeed, masturbation-defense law is a growing practice area, providing job opportunities for desperate law school graduates.

But masturbating while being hooked up to a machine and watched by others doesn’t sound like much fun. And it doesn’t have a great pedigree either:

The procedure was “developed by Czech psychiatrist Kurt Freund as a means to study sexual deviance,” and it was “at one time used by the Czechoslovakian government to identify and ‘cure’ homosexuals.”

And we all know how well those efforts go.

If you’re skeptical of penile plethysmography (anything that hard to spell has got to be sketchy), the Second Circuit agrees with you. Here’s the meat of the panel opinion:

  • “[T]he procedure inflicts the obviously substantial humiliation of having the size and rigidity of one’s penis measured and monitored by the government under the threat of reincarceration for a failure to fully cooperate. And even if the machine could accurately monitor and record the extent or intensity of a convict’s prurient interests (a proposition about which we have serious doubts), the goal of correctional treatment during supervised release is properly directed at conduct, not at daydreaming.”
  • “[W]e see no reasonable connection between fluctuating penis size and public protection — certainly none strong enough to survive the careful scrutiny that we give to unusual or severe conditions of supervised release.”
  • “[W]e also find it odd that, to deter a person from committing sexual crimes, the Government would use a procedure designed to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime of conviction. In short, the Government offers no compelling justification for plethysmography in the name of deterring crime.”

Accordingly, the Second Circuit gave this dubious and degrading practice the shaft. Quoth the panel: “A person, even if convicted of a crime, retains his humanity.”

(Flip to the next page for the full Second Circuit opinion and links to collected news coverage.)


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