Wednesday, June 21, 2006
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Ninth Circuit Limits Use of Invasive Testing Procedure Used to Treat Sex Offenders as Condition of Parole
By TINA BAY, Staff Writer
A physically invasive test used to treat sex offenders implicates a significant due process liberty interest and can only be imposed as a condition of a sex offender’s supervised release if the government proves that alternatives are inadequate, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel ordered U.S. District Judge Dean D. Pregerson of the Central District of California to reconsider his order that Matthew Henry Weber undergo penile plethysmograph testing as part of a sex offender treatment program during his three years of supervised release after serving a 27-month term for possession of child pornography.
The testing, Judge Marsha S. Berzon explained in her opinion for the court, “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.”
Weber was arrested in 2001 after an electronics store technician repairing Weber’s computer discovered child pornography images on the hard drive and notified the Los Angeles Police Department.
In its presentence report, the Probation Office proposed imposing, as one of 20 conditions on Weber’s supervised release, the requirement that he participate in a sex offender treatment program that could include penile plethysmograph testing.
Weber objected to the condition, contending that such testing was appropriate only for individuals who committed or attempted to commit sexual acts directly against children, and not warranted by his crime of merely possessing child pornography.
Berzon noted that administration of the test is “rather routine” in adult sex offender treatment programs today, but added that the test itself “is not a run-of-the-mill medical procedure.”
The judge concluded that plethysmograph testing implicates “a particularly significant liberty interest” because “[it] not only encompasses a physical intrusion but a mental one, involving not only a measure of the subject’s genitalia but a probing of his innermost thoughts as well.”
But the judge said that the panel could not categorically invalidate the test—despite its being “exceptionally intrusive in nature and duration,” the severe questioning of its accuracy and reliability, its susceptibility to manipulation via faking, and the lack of standard procedures in its administration—because psychologists and researchers have recognized the procedure as a useful technique in sex offender treatment.
She clarified, however, that the government shoulders the burden of demonstrating it has met the standards of 18 U.S.C. Sec. 3583(c), which limits a district court’s ability to impose conditions of supervised release
The district court must make an individualized determination for each offender that imposing the test as a condition of supervised release is, first, reasonably related to the government’s goals of deterring and rehabilitating the offender and protecting the public, and second, involves no greater deprivation of liberty than is reasonably necessary, she explained.
On the issue of tailoring, the judge said that “[o]nly a finding that plethysmograph testing is likely given the defendant’s characteristics and criminal background to reap its intended benefits can justify the intrusion into a defendant’s significant liberty interest in his own bodily integrity.”
On the necessity issue, Berzon pointed out that there were other “considerably less intrusive” and “non-physiological” alternatives to plethysmograph testing that may be sufficiently accurate, such as polygraph testing; self-reporting interviews where the subject is asked about his sexual preferences; card-sorting tests, which involve asking the subject to sort cards depicting sexual images into deviant and non-deviant categories; and Abel testing, which involve presenting the subject with non-erotic photographs and measuring how long the subject spends viewing each picture.
“When viable and effective alternatives exist to plethysmograph testing, a procedure that involves intrusion on an especially significant liberty interest,” the judge concluded, “a district court should be hesitant to impose that procedure as a supervised release condition and may do so only after explaining on the record why the alternatives are inadequate.”
Senior Judge William C. Canby Jr. joined in Berzon’s opinion.
In a concurring opinion, Senior Judge John T. Noonan said he would go even further than Berzon to hold that penile plethysmograph testing—an “Orwellian procedure”—is always a violation of the personal dignity to which prisoners are entitled.
“[A] prisoner should not be compelled to stimulate himself sexually in order for the government to get a sense of his current proclivities,” Noonan wrote. “There is a line at which the government must stop. Penile plethysmography testing crosses it.”
The case is United States v. Weber, 05-50191.
Copyright 2006, Metropolitan News Company