Divided Rulings on the Use of Plethysmograph Testing as a Condition of Supervised Release

The below is OCEAN Newsletter Volume 1, Issue 3, Article 3 (Sep. 12, 2019) published by Russell J. Hatton & Daniel A. Wilson from the gulag in Moose Lake Minnesota.

 

Judge Berzon’s excellent opinion is deserving of support. I would, however, go beyond it to hold the Orwellian procedure at issue to be always a violation of the personal dignity of which prisoners are not deprived. The procedure violates a prisoner’s bodily integrity by affecting his genitals. The procedure violates a prisoner’s mental integrity by intruding images into { 451 F .3d 571} his brain. The procedure violates a prisoner’s moral integrity by requiring him to masturbate.

By committing a crime and being convicted of it, a person does not cease to be a person. A prisoner is not a mere tool of the state to be manipulated by it to achieve the purposes the law has determined appropriate in punishment. The prisoner retains his humanity and therefore has purposes transcending those { 2 006 U.S. App. LEXIS 52} of the state. A prisoner, for example, cannot be forced into prostitution to aid the state in securing evidence. A prisoner, for example, cannot be made to perjure himself in order to assist a prosecution. Similarly, a prisoner should not be compelled to stimulate himself sexually in order for the government to get a sense of his current 􀇮roclivities. There is a line at which the government must stop. Penile plethysmography testing crosses it.¹

‘ Courts have uniformly declared that the results of such tests are “inadmissible as evidence because there are no accepted standards for this test in the scientific community. “3 (plethysmography’s “scientific status remains that of an experimental technique”).4

In spite of the above-noted reservations, there is evidence that a variety of behavioral therapy methods can be employed to de-condition various forms of “deviant arousal” in a laboratory setting. For instance, by employing a device known as the penile plethysmograph (which can document the degree to which a man has achieved an erection), it has been possible to show that certain individuals, who prior to treatment had obtained full erections when exposed to either audio or visual stimuli depicting children, would subsequently no longer do so following certain forms of “de-conditioning” treatments in a laboratory setting.

However, unfortunately there is a lack of good evidence documenting that such relatively short-term changes, as have been demonstrated in the clinical laboratory, are necessarily predictive of long-term behavioral change in the community.

To put it somewhat crudely, what matters in treatment is not how a man’s penis behaves in the laboratory, but how he is going to behave over time in society.

Historically, at a time when consenting adult homosexual activities had been prosecuted criminally, similar behavior therapy methods had been utilized to try to de-condition homosexual attractions, replacing them instead with heterosexual feelings.

After reviewing that treatment literature, the American Psychiatric Association has taken the stance that attempts to recondition sexual orientation have been both ineffective, as well as ethically questionable.

Although that policy statement was developed in the context of attempts to recondition homosexuality, precisely the same principles and procedures are involved when attempting to de-condition pedophilic, and other forms of “deviant arousal.”

Many persons can experience arousal with respect to an unacceptable partner. Furthermore, one does not necessarily have to use a device such as the penile plethysmograph ( or another technique called the Abel Screen) to know that that is so. The important issue in treatment is not whether a person is still experiencing such attractions, but that he has reached the point where he will no longer act on them. To the extent that the program may make it difficult for a man to progress through treatment if he still shows evidence of “deviant arousal,” as measured by the penile plethysmograph in the clinical laboratory, in my professional opinion, that would represent a substantial departure from accepted practice, judgment, and/or standards in the field of inpatient mental health care.

Fred S. Berlin, M.D., Ph.D. Associate Professor, the Johns Hopkins University School of Medicine Founder, the Johns Hopkins Sexual Disorders Clinic Director, National Institute for the Study, Prevention and Treatment of Sexual Trauma; October 16, 2 003 copy: file of Hargett, et al. versus Baker, et al #02c 1456D. Standards of Review for Mandated PPG Testing “In a concurring opinion, Judge John Noonan expressed his view that the court should have taken the opportunity to eliminate the use of PPG testing altogether. He explained that he would hold the ‘ Orwellian procedure … to be always a violation of the personal dignity of which prisoners  282 are not deprived’  283 Judge Noonan did not directly cite to any precedent regarding which liberty interest PPG testing infringes. However, he was unequivocal in his view that PPG testing infringes on a fundamental right.  284 He wrote: ‘ The procedure violates a prisoner’s bodily integrity by affecting his genitals. The procedure violates a prisoner’s mental integrity by intruding images into his brain. The procedure violates a prisoner’s moral integrity by requiring him to masturbate.’ 285

Further, Judge Noonan emphasized that convicts do not lose their humanity. He explained that the government would certainly not be allowed to force a convict into prostitution to help secure evidence of a crime or to force a criminal to perjure himself to secure a conviction of another.286 Judge Noonan found these situations analogous to mandated PPG testing , adding that ‘a prisoner should not be compelled to stimulate himself sexually in order for the government to get a sense of his current proclivities. ‘287 He concluded by writing, ‘ [T]here is a line at which the government must stop. Penile plethysmography testing crosses it. ‘288” p. 292: “The Second Circuit went further, explaining that even if PPG testing was indisputably reliable,300 it would not be appropriate because ‘supervised release is properly directed at conduct, not at daydreaming.’301” p. 293: “The Second Circuit also held that PPG testing could not be construed as a means to protect the public.

Even if there was a strong correlation between sexual thoughts and rates of recidivism, ‘unacted-upon prurient sexual thoughts, just like “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.”‘306 Even convicted sex offenders are entitled to freedom of thought, and the court found ‘no reasonable connection between fluctuating penis size and public protection.’307 ” … If anything, the court posited, the PPG testing would reinforce sexually deviant thoughts by regularly presenting sexually deviant imagery to the offender.31 O”

However, as so often seems true, something always comes to light afterward that requires addition. This is one of those cases. Many who have taken the PPG exam here in MSOP have complained that false reports have resulted, claiming that erections occurred when none did, or that some penile movement toward an erect state was detected when none was experienced by the test subject.

Accusations of fraud have been leveled against examiners. This is not to disagree with such accusations. I have addressed the issue of the lack of standardization and of divergent practices as potentially offering a chance for fraudulently falsified outcomes in that earlier article.

TLP, Vol. 1, No. 10, pp. 6-8).

Look/or upcoming research concerning the P. P. G.

“Making Monsters” Let’s start by returning to Andrew S. Balmer & Ralph Sandland, “Making Monsters: The Polygraph, the Plethysmograph, and Other Practices for the Performance of Abnormal Sexuality,” 39 Jour. Of Law and Society 593-615 (No. 4, December 2012), ISSN: 0263-323X, 593-615; and Judicial Awareness of PPG Inaccuracy By way of example, United States v Guy Randy White Horse, No. 2001DSD38, 177 F. Supp. 2d 973, 976 (D. S.D. 2001).

“Whoever approved of the use of pictures of underage children, including baby’s in diapers, to be used in the penile-plethysmograph (PPG) should be arrested and charged for the production and distribution of child pornography- including the parents of the children involved.” -OCEAN

FOOTNOTES

1 Concur by: John T. Noonan; NOONAN, Circuit Judge, concurring.
2 United States v. Weber, 186 Fed. Appx. 751, 2006 U.S. App. LEXIS 15820 (9th Cir. Cal., June 20, 2006)
3 Glanzer, 232 F.3d at 1266; see also United States v. Powers, 59 F.3d 1460, 1470-71 ( 4th Cir. 1995).
4 Berthiaume, 142 F.3d at 17; see also Simon & Schouten, supra, at 511

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