Court strikes down intrusive genital examination

The Court of Appeals holds that the Constitution prohibits requiring a convicted sex offender to regularly submit to "penile plethysmography testing," an intrusive test that measured his reaction to pornography. The test simply goes too far.

The case is United States v. McLaurin, decided on October 3. After McLaurin violated the terms of his probation in failing to keep authorities notified of his address, he was sentenced to a prison term and five years of supervised release that required him "to participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.” Here is what the test entails:

This examination involves the use of a device know as a plethysmograph which is attached to the subject’s penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

You can challenge a government policy as outrageous under a catch-all doctrine called "substantive due process," which says that the Due Process Clause prohibits liberty restrictions that lack any justification. These challenges are difficult to win because courts do not want to interfere with the workings of the democratically-elected branches of government. But there are limits to what the government can get away with, and this is one of them.

Judges Calabresi and Parker jointly write the opinion (Judge Cabranes is in agreement). They write that "[t]he Government is unable to say, except with vague generalities, how the use of the device amounts to “treatment,” and is unable to point to any expected, much less tangible, benefits to McLaurin from the testing. In other words, the Government has made no showing that this exceedingly intrusive procedure has any therapeutic benefit, and none is apparent to us." "But even assuming that the procedure is “reliable,” we fail to see how it would confer any value as correctional treatment. To begin with, the 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."

In addition, the test has not been shown to protect the public. "Even if we were to consider the purported correlation between increasing penis size and recidivism to be strong, the correlation would be irrelevant. The testing could not help to protect the public unless the results were used to justify further detention or more restrictive conditions of release. But that could not occur because McLaurin had already received a fixed term of incarceration followed by a fixed term of supervised release, neither of which could be altered by a poor test score." The Court adds, "we see no reasonable connection between fluctuating penis size and public protection."

In the end, this intrusive test has nothing to do with the defendant's crime, which involved photographing his daughter topless ten years ago. He plead guilty for failing to register as a sex offender. "Ten years passed between that offense and the instant failure to register, and McLaurin has not been convicted or accused of any substantively sexual crime in that period. We fail to see any reasonable connection between this defendant, his conviction more than a decade ago, his failure to fill out paperwork, and the government-mandated measurement of his penis."