The 9th U.S. Circuit Court of Appeals stopped short of forbidding a controversial device that measures sexual arousal as a probation condition, in the case of Matthew Weber ( United States v. Weber) The Court stated that before imposing it on any defendant, the government must prove it’s necessary and doesn’t unnecessarily deprive a defendant of his liberty.
The defendant was convicted of possessing child pornography and sentenced to 27 months imprisonment after a Los Angeles electronics store employee discovered several images of child pornography on the hard drive of the computer Weber had taken in for repairs.
In March of 2005, a judgment by a Los Angeles district court required Weber to undergo penile plethysmograph testing as a condition for his release on probation.
The penile plethysmograph (PPG) is a controversial type of plethysmograph that measures changes in blood flow in the penis in response to audio and/or visual stimuli. It is typically used to determine the level of sexual arousal as the subject is exposed to sexually suggestive content, such as photos, movies, or audio.
Calling the device “exceptionally intrusive,” the decision, written by Judge Marsha Berzon of San Francisco, follows a similar one by the 1st U.S. Circuit Court of Appeals. The Richmond, Va.-based 4th Circuit has found plethysmograph testing to be useful in some circumstances and reasonably related to treatment, deterrence, or public protection.
Splits among the circuit courts often mean that a decision by the Supreme Court is not far off.
The decision was unanimous among the three judges, with Judge John Noonan of San Francisco writing a separate concurrence calling the procedure “Orwellian” and saying it is “always a violation of the personal dignity of which prisoners are not deprived.”
A prisoner remains a human being, Noonan wrote, and “should not be compelled to stimulate himself sexually in order for the government to get a sense of his current proclivities. There is a line at which the government must stop.”
The U.S. attorney’s office in Los Angeles said the ruling would not affect its efforts “to ensure that predators are punished and receive proper treatment following their release.” In written arguments, the prosecutor’s office cited a 2000 ruling by another panel of the 9th Circuit that said “courts have accepted that penile plethysmographs can help in the treatment and monitoring of sex offenders.”
While some researchers have found the test useful in diagnosis and treatment, the American Psychiatric Association reported in 2000 that its reliability and validity had not been well established, and that responses could be faked, the court said.
Other diagnostic methods are available including polygraph testing, with a provision that the subject’s answers would not be used to incriminate him, and Abel testing, which examines the length of time the subject looks at various photographs; both were ordered for the defendant.
