Credit: Alabama Dept of Public SafetyYesterday, the Second Circuit
Court of Appeals, which oversees New York, Vermont,
and Connecticut, determined that using
an erection-measuring device as part of probation for one sex
offender was an “extraordinarily invasive” and a violation of due
process.

As part of his probation, convicted sex offender David McLaurin

underwent “plethysmograph examinations,” in which a device was
“attached to the subject’s penis” and “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.”

In a similar case in 2001, the Ninth Circuit Court of
Appeals explained
that erection-measuring “has become routine in the treatment of
sexual offenders.” Plethysmography advocates, like the Council on
Sex Offender Treatment in Texas,
contend that although the procedure cannot be used to
prove anything in court, it can help gauge a sex offender’s
likelihood of recidivism.

The Second Circuit Court of Appeals saw some problems with
the claims of plethysmography’s effectiveness. The judges
wrote, “We find it odd that, to deter a person from committing
sexual crimes, the Government would use a procedure designed to
arouse and excite a person with depictions of sexual conduct
closely related to the sexual crime of conviction.”

The rights-violating and “unduly intrusive” examination stems
not from the actual sexual crimes McLaurin committed. In fact, a
previous court had determined him “unlikely to reoffend again.”
Rather, a bureaucratic slip-up led to him enduring plethysmography.
McLaurin failed to fill out a form registering his address when he
moved from Alabama to Vermont in 2011. Subsequently, he was
sentenced to 15 months in prison and five years probation. His
sentencing included the option, but did not require, that McLaurin
could undergo plethysmogrophy.

The judges overseeing his appeal
stated that they “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.”