Ninth Circuit Issues Major Opinion on Penile Plethysmograph Testing

Penile plethysmograph testing involves measuring a subject's erectile response to different sexually stimulating images -- to determine, e.g., whether the subject is aroused by sexual images of children. Courts have held the procedure insufficiently reliable to qualify for admissibility in trial proceedings, but the testing is often imposed on sex offenders as a condition of supervised release. The Ninth Circuit has now issued a major opinion holding that it may not be, under the governing federal statutory regime, unless the district court has first made a thorough, on-the-record inquiry into whether the testing is reasonably necessary in the particular case to promote the goals of deterrence, rehabilitation, or protection of the public, given the availability of less intrusive alternatives. See United States v. Weber, No. 05-50191 (9th Cir. June 20, 2006) (Canby, Noonan, & Berzon, JJ.).

Although the court's opinion does not adopt a per se ban, it makes plain the court's expectation that the testing will not be imposed as a matter of routine. Judge Berzon's opinion begins with the observation that "one would expect to find a description of such a procedure gracing the pages of a George Orwell novel rather than the Federal Reporter." Judge Noonan's two-paragraph concurrence goes further:

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 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 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 proclivities. There is a line at which the government must stop. Penile plethysmography testing crosses it.