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Comments on Criminal Issues
September 24, 2007
PENILE PLETHYSMOGRAPHY:BIG BROTHER AND PUNISHING THOUGHT
Criminal Defense Attorneys Keep Eye on Conditions of Probation, Parole and Supervised Release, Sex Crimes Convictions
What kind of condition is penile plethysmography? More to the point, what is plethysmography?
The word “plethysmograph” Greek words “plethysmos” and “graphos.” The former mean “enlargement” and the latter means “to write.” A penile plethysmorgraph, therefore, is an instrument that measures the volume of the penis (or its erection). See, Odeshoo, Jason D., “Of Penology and Perversity: The Use of Penile Plethysmorgraphy on Convicted Child Sex Offenders, 14 Temp. Pol. & Civ. Rts. L.Rev. 2004, p. 6.
Odeshoo, an Associate with Winston & Strawn LLP. and who earned a J.D. with distinction at Stanford Law School 2004), outlined the history of this erectile measuring device:
Although its antecedents can be traced as far back as the 1930s, the device in its current form was developed in the 1950s by Czech psychiatrist Karl Freund. Freund's plethysmograph consists of an airtight glass tube that completely encloses the penis. When the penis becomes engorged with blood during arousal, the volume of air inside the tube decreases. The tube is wired to a machine that allows researchers to measure changes in air volume, which in turn allows for the measurement of minute changes in penile tumescence.
A second plethysmograph was developed in 1966 by Dr. John Bancroft (currently the head of the Kinsey Institute for Research in Sex, Gender, and Reproduction at Indiana University). Bancroft's device consists of a strain gauge--essentially a silicone rubber ring--that fits around the penis. The gauge is filled with mercury or indium gallium and is plugged with electrodes, which allows a weak electrical current to be passed through the ring. Changes in the size of the penis cause corresponding changes in the ring, which are then recorded electronically.
Given the different ways in which the devices take their measurements, Freund's method is sometimes referred to as the "volumetric method," and Bancroft's is called the "circumferential method." The volumetric method is highly sensitive and is thought to be the more accurate of the two. Studies have shown, for example, that arousal results in changes in length before changes in circumference, and indeed that increases in the penis's length may initially narrow the penis's shaft, thus indicating a reduction of arousal according to the circumferential method. The volumetric method is less commonly used, however, because it is more cumbersome and costly than the circumferential method. Id., 6-7.
While Freund initially invented his device to study pedophilia, the Czech government quickly learned about the device and its military utilized it to determine the sexual orientation of recruits who claimed homosexuality as a way of avoiding military service. Id. The Czech government forced Freund to use his device as a homosexual aversion therapy, inflicting electric shocks on suspected homosexuals who became aroused by homosexual images with the belief that it would cure this sexual preference. Id. Freund ultimately moved to Canada where he used his device to study his preferred subject: pedophilia. This subject matter and device soon spread to the United States and Great Britian. Id.
Odeshoo wrote that “it is difficult to ascertain just how widespread use of the technique is at the current time. One 1992 study indicated that of 726 programs surveyed in North America, 32% regularly performed PPG examinations. A more recent survey revealed that approximately 25% of adult offender programs use PPG, while only approximately 9% of 185 juvenile offender programs use it. According to still another source, roughly 18% of members of the Association for the Treatment of Sexual Abuse (ATSA) employ the procedure. Other researchers have concluded that the procedure's use is more common, but the results of these studies are undermined by methodological flaws. It appears that PPG is used somewhat less *8 frequently than other technologies used for treating and assessing sex offenders, such as the polygraph.” Id., at 8.
What is certain is that most people do not realize just how pervasive the use of penile plethysmography testing (PPT) is our society. For example, the courts have sanctioned its use on sex offenders in the following situations:
• As a condition of parole, probation, and supervised release. See, e.g., United States v. Music, 49 Fed.Appx. 393, 395 (4th Cir. 2002)[supervised release]; Walrath v. United States, 830 F. Supp. 444, 447 (N.D. Ill. 1993)[condition of parole]; State v. Riles, 957 P.2d 655, 663-64 (Wash. 1998)[condition of probation].
• Use in prison sex offender treatment programs. See, e.g., Searcy v. Simmons, 68 F. Supp. 2d 1197, 1204 (Kan. 1999)[plethysmograph examinations do not violate substantive due process or Fourth Amendment rights]; Pool v. McKune, 987 P.2d 1073, 1080 (Kan. 1999)[no Fourth Amendment violation when penile plethysmograph testing is part of sex offender’s rehabilitation]; Von Arx v. Schwarz, 517 N.W.2d 540, 546 (Wis. 1994)[criminal sentence requiring plethysmograph testing in prison program constitutional].
See: 14 Temp. Pol. & Civ. Rts. L.Rev. 2004, p. 3.
The use of penile plethysmography has been encouraged far beyond the prison setting. The U.S. Justice Department’s Center for Sex Offender Management has suggested that the use of PPT on sex offenders above fourteen years of age is appropriate. The test was used on one ten-year-old accused of sodomizing a four-year-old boy. See: Kreber, Glen, “Use of the Penile Plethysmograph in the Assessment and Treatment of Sex Offenders,” Report of the Interagency Council on Sex Offender Treatment to the Senate Interim Committee on Health and Human Services and the Senate Committee on Criminal Justice (1993), p. 5. This Senate Report found that PPT is used in 27 percent of all juvenile sex offender programs. That is a significant finding since the most recent data indicates that 20 percent of all the people charged with sex offenses in North America are juveniles. See: Association for the Treatment of Sexual Abusers, Managing Sex Offenders in the Community: A National Overview 34 (2003).
PPT has also been used in the work place. For example, the First Circuit Court of Appeals ruled that such testing was not unreasonable or shocking to conscience when ordered by a nurse licensing board for a nurse convicted of obtaining child pornography. See, Berthiaume v. Caron, 142 F.3d 12 (1st Cir. 1998). Six years earlier, however, the same appeals court held in a case where a police department had ordered PPT on a police officer accused of child molestation that “there has been no showing regarding [the test’s] reliability and, in light of other psychological evaluative tools available, there has been no demonstration that other less intrusive means of obtaining the relevant information are not sufficient.” See: Harrington v. Almy, 977 F.2d 37, 44 (1st Cir.1992).
While the courts have been fairly generous in allowing the use of PPT in prison sex offender treatment programs, the courts have been reluctant to extend its use into the criminal investigation arena. For example, an order that PPT be used on a father accused by the mother of sexually abusing their daughter was reversed due to absence of evidence that the test is generally accepted in the scientific community as a reliable barometer for measuring sexual deviancy. See: In Re Marriage of Parker, 91 Wn.App. 219, 957 P.2d 256 (1998).
Similarly, a state court of appeals held that absent a conviction for sexual deviancy, a father cannot be require to submit to PPT without a showing of a compelling interest that outweighs his liberty interest. See: In Marriage of Ricketts, 111 Wn.App. 168, 43 P.3d 1258 (2002). See also: Coleman v. Dretke, 395 F.3d 216, 223 (5th Cir.2004) (“highly invasive nature” of the test implicates significant liberty interests)
While the courts have used PPT as a condition of supervised release in sex offense cases, the Sixth Circuit recently questioned its efficacy after a long period of incarceration. See: United States v. Sean William Lee, ___ F.3d ____, 2007 WL 2669124 (6th Cir. 09/13/07 Tenn). In Lee the defendant pled guilty to using a computer and telephone for purposes of persuading a minor to engage in sex acts in violation of 18 U.S.C. § 2422(b). He was sentenced to 188 months imprisonment with a life time supervised released. Id., WL at 1. As a condition of the supervised release, the sentencing judge ordered that Lee participate in a specialized sex offender treatment program which includes possible PPT use. Id. The background facts of the Lee case were sketched out by the Sixth Circuit:
Between January 12, 2005 and March 20, 2005, the then 35-year-old Lee used an instant messenger program on his home computer in Memphis, Tennessee to contact an individual he believed to be a 13-year-old female living with her parents in Mississippi. The individual Lee contacted was actually an undercover Federal Bureau of Investigation agent representing herself as a 13-year-old female. Lee contacted the agent numerous times over instant messenger, telephone, and cellular telephone. Lee also used a webcam to transmit an image of his face to the agent. Their telephone communications, which were recorded, revealed that Lee spoke with the agent about engaging in sexual activity with her, specifically oral sex and masturbation. On March 20, 2005, Lee had one final internet communication with the agent and then left his home in his truck to travel down to Mississippi to meet her. While en route, he called the agent on his cellular telephone. When Lee arrived at the apartment complex where the intended victim supposedly lived, he was placed under arrest. Id.
Lee entered his guilty plea on December 12, 2005. He was thus sentenced under the 2005 version of the U.S. Sentencing Guidelines. The Presentencing Report (PSR) recommended under the guidelines a base offense level of 24 for violating § 2422(b) and a two-point increase for using a computer “to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct.” A two-point reduction for accepting responsibility brought his offense level back to 24, but was then assessed a 10-point enhancement as a repeat and dangerous sex offender against minors. He received a second two-point reduction for acceptance of responsibility, bringing his total offense level to 32. The PSR assigned him a criminal history category of V, and with the offense level of 32, the guidelines range of exposure was 188 to 235 month. The court imposed the lowest recommended sentence of 188 months, plus the supervised release with conditions.
On appeal Lee challenged the potential PPT condition. The appeals court addressed that issue as follows:
This Court has held that conditions of supervised release may be ripe for appellate review immediately following their imposition at sentence. See United States v. Wilson, 172 F.3d 50, 1998 WL 939987, at *2 (6th Cir. Dec.22, 1998) (unpublished) (holding that the defendant's appeal of special conditions of supervised release to be imposed after his twelve-month prison sentence, which included discretionary use of plethysmograph testing, was ripe for review). But here, we believe that Lee's rights will be better served if his appeal is preserved until after he is released from prison. Therefore, we hold that the condition of supervised release that he challenges is not yet ripe for review. See United States v. Littleton, 103 F.3d 131, 1996 WL 694162, at *4-5 (6th Cir. Dec.3, 1996) (unpublished) (declining to address conditions of the defendant's supervised release, which included a plethysmography test, that would follow his thirty-six month sentence); cf. United States v. Worthington, 145 F.3d 1335, 1998 WL 279379, at *17 & n. 4 (6th Cir. May 21, 1998) (unpublished).
There are two reasons why we hold that Lee's claim is not yet ripe. First, there is no guarantee that Lee will ever be subject to plethysmograph testing. Notably, the condition implicates only the potential use of a penile plethysmograph. See Joint App'x at 133-34 (“[Lee] must participate in a specialized sex offender treatment program that may include the use of plethysmograph or polygraph.”) (emphasis added); see also Joint App'x at 160(PSR). In addition, Lee will not be released from prison until 2021-fourteen years from now. Lee will be fifty-one years old and will have served over fifteen years in prison, during which time he will likely receive sex offender treatment. We have no idea whether the Probation Office will determine that such treatment will be necessary at that time. In fact, this arguably presents a more compelling case for dismissal on ripeness grounds than Littleton, where the defendant was sentenced to slightly more than one-fifth of the time that Lee must serve. Cf. Wilson, 1998 WL 939987, at *2 (holding that defendant's claim was ripe where he faced only a twelve-month prison sentence). Thus, given that the occasion may never arise, Lee's contention that he will actually be subject to penile plethysmograph testing is mere conjecture. Cf. United States v. Shoenborn, 4 F.3d 1424, 1434 (7th Cir.1993) (“[T]his court does not render decisions in hypothetical cases.”).
Our second reason for finding that Lee's claim is unripe is the fact that it is unclear whether, by the year 2021, penile pelthysmograph testing will still be used. As a few of our sister circuits have noted, penile plethysmogrpah testing implicates significant liberty interests, and further, its reliability is questionable. See Weber, 451 F.3d at 562, 564 (explaining that plethysmograph testing is “not a run-of-the-mill medical procedure,” and that studies have shown that results may be unreliable); Coleman v. Dretke, 395 F.3d 216, 223 (5th Cir.2004) (concluding that the “highly invasive nature” of the test implicates significant liberty interests); Harrington v. Almy, 977 F.2d 37, 44 (1st Cir.1992) (“There has been no showing regarding [plethysmography]'s reliability and, in light of other psychological evaluative tools available, there has been no demonstration that other less intrusive means of obtaining the relevant information are not sufficient.”); cf. United States v. Powers, 59 F.3d 1460, 1471 (4th Cir.1995) (holding that the trial court did not abuse its discretion when it did not allow plethysmogrpah test results to be admitted as evidence due to the test's failure to satisfy the “scientific validity” prong of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
We cannot speculate on what will happen by 2021 with respect to penile plethysmograph testing. For example, by then, the test may be held to violate due process rights. Or, its reliability will have been debunked. Or, perhaps a less intrusive test will have replaced it. In light of these possibilities, we simply do not know whether Lee will ever be forced to submit to plethysmograph testing, and therefore, we hold that his claim is not yet ripe. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (explaining that an unripe claim is one that involves “contingent future events that may not occur as anticipated, or indeed may not occur at all”) (quoting 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3532 (1984)).
The Sixth Circuit left a legal remedy open for Lee. The court said when his claim became ripe for review following his release from prison, he could apply for a modification of the conditions of his supervised release under 18 U.S.C. § 3583(e).
The Ninth Circuit also recently refused to accept a blanket use of PPT as a condition of supervised release. See: United States v. Weber, 451 F.3d 552 (9th Cir. 2006)[before PPT can be imposed as term of supervised release, district court must make individualized determination of whether such testing was necessary to accomplish goals]. After pointing out that the subject of PPT is shown an array of pornographic images and the level of his sexual attraction measured by his erectile responses, the Ninth Circuit observed: “Although one would expect to find a description of such a procedure gracing the pages of a George Orwell novel rather than the Federal Reporter, plethysmograph testing has become routine in the treatment of sexual offenders and is often imposed as a condition of supervised release.” Id.
The Ninth Circuit then set out the procedural guidelines that must be followed by the district court before PPT can be imposed as a condition of supervised release:
Although the consideration of plethysmograph testing as a term of supervised release is a question of first impression in this circuit, we are guided in our analysis by the statutory requirements governing the imposition of conditions of supervised release and by our prior case law interpreting those requirements. We have repeatedly held that a district court enjoys significant discretion in crafting terms of supervised release for criminal defendants, including the authority to impose restrictions that infringe on fundamental rights. See United States v. T.M., 330 F.3d 1235, 1239-40 (9th Cir.2003); United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998). In fashioning conditions of supervised release, a district court “has at its disposal all of the evidence, its own impressions of a defendant, and wide latitude.” Williams, 356 F.3d at 1052. In light of this “wide latitude,” we give considerable deference to a district court's determination of the appropriate supervised release conditions, reviewing those conditions deferentially, for abuse of discretion. Id.
A district court's discretion in this regard is not, however, boundless. The principal statute governing a district court's ability to impose conditions of supervised release is § 3583. Section 3583(c) states:
The court, in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release, shall consider the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).
The cross-referenced § 3553(a) factors that are of particular relevance here direct a court to consider:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed-
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
In addition to setting forth certain mandatory conditions of supervised release, § 3583(d) permits a district court to impose any condition it deems appropriate,FN6 so long as the discretionary condition
(1) is reasonably related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a).
Under this statutory scheme, then, conditions of supervised release “are permissible only if they are reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender.” T.M., 330 F.3d at 1240. “Conditions of supervised release must relate to these purposes, but may be unrelated to one or more of [them], so long as they are sufficiently related to the others.” Bee, 162 F.3d at 1235 (alteration in original) (internal quotation marks omitted). In addition, a supervised release condition need not relate to the offense of conviction, as long as it satisfies one of the above goals. See T.M., 330 F.3d at 1240. Finally, even if a proposed condition otherwise meets the statutory requirements of § 3553(a), it still must “involve ‘no greater deprivation of liberty than is reasonably necessary for the purposes' of supervised release.” Id. (quoting § 3583(d)(2)). Id., 557-58.
The Ninth Circuit followed this statutory overview with a detailed discussion of the “liberty interests” implications associated with PPT:
As noted at the outset, penile plethysmograph is a test designed to measure a man's sexual response to various visual and auditory stimuli. More precisely, the male “places on his penis a device that measures its circumference and thus the level of the subject's arousal as he is shown sexually explicit slides or listens to sexually explicit audio ‘scenes.’ ” Berthiaume v. Caron, 142 F.3d 12, 13 (1st Cir.1998); see also Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1262 (9th Cir.2000) (“A penile plethysmograph is a test that measures, through electric wires attached to a man's penis, the reactions that a man has when presented with certain visual stimuli....”). The following account spells out how plethysmograph testing works in practice:
Prior to beginning the test, the subject is typically given
instructions about what the procedure entails. He is then asked to place the device on his penis and is instructed to become fully aroused, either via self-stimulation or by the presentation of so-called “warm-up stimuli,” in order to derive a baseline against which to compare later erectile measurements. After the individual returns to a state of detumescence, he is presented with various erotic and non-erotic stimuli. He is instructed to let himself become aroused in response to any of the materials that he finds sexually exciting. These stimuli come in one of three modalities-slides, film/video clips, and auditory vignettes-though in some cases different types of stimuli are presented simultaneously. The materials depict individuals of different ages and genders-in some cases even possessing different anatomical features-and portray sexual scenarios involving varying degrees of coercion. The stimuli may be presented for periods of varying length-from mere seconds to four minutes or longer.
Changes in penile dimension are recorded after the presentation of each stimulus....Odeshoo, supra, at 8-9 (footnotes omitted).
Initially developed by Czech psychiatrist Kurt Freund as a means to study sexual deviance, plethysmograph testing was also at one time used by the Czechoslovakian government to identify and “cure” homosexuals. David M. Friedman, A Mind of Its Own: A Cultural History of the Penis 232 (2001). Today, plethysmograph testing has become rather routine in adult sexual offender treatment programs, with one survey noting that approximately one-quarter of adult sex offender programs employ the procedure. Odeshoo, supra, at 8. Another survey has placed the relative incidence of the test among adult sexual offender programs at fifteen percent, a somewhat lower, yet still considerable, level. See D. Richard Laws, Penile Plethysmography: Will We Ever Get It Right?, in Sexual Deviance: Issues and Controversies 82, 97 (Tony Ward et al. eds., 2003).
Courts have previously recognized that plethysmograph testing “can [be] help [ful] in the treatment and monitoring of sex offenders.” Glanzer, 232 F.3d at 1266. At the same time, the First Circuit has noted, putting it mildly, that plethysmograph testing is likely to “strike most people as especially unpleasant and offensive.” Berthiaume, 142 F.3d at 16. Although we agree that “there are plenty of ordinary medical procedures that are disagreeable or upsetting to the patient,” id., this test is not a run-of-the-mill medical procedure. Plethysmograph testing 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. See Odeshoo, supra, at 23.
Moreover, plethysmograph testing is exceptionally intrusive in nature and duration. As one commentator has noted:
It is true that cavity searches and strip searches are deeply invasive, but [plethysmograph testing] is substantially more invasive. Cavity searches do not involve the minute monitoring of changes in the size and shape of a person's genitalia. Nor do such searches last anywhere near the two or three hours required for penile plethysmography exams. Nor do cavity or strip searches require a person to become sexually aroused, or to engage in sexual self-stimulation.
As these descriptions of plethysmograph testing indicate, the procedure implicates a particularly significant liberty interest. In reaching this conclusion, we follow the reasoning of the First Circuit in Harrington v. Almy, 977 F.2d 37, 44 (1st Cir.1992). Harrington determined that a government employee had raised sufficient questions as to his due process interest in refusing his employer's demand that he submit to plethysmograph testing to warrant a jury trial on the question whether the requirement violated substantive due process. Id.
Harrington considered the strength of the plaintiff's liberty interest claim in refusing to submit to plethysmograph testing in light of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), cases in which the Supreme Court considered the constitutional interest inherent in avoiding “unwanted bodily intrusions or manipulations.” Harrington, 977 F.2d at 43-44. As the First Circuit observed in Harrington, the governing case law indicates that “nonroutine manipulative intrusions on bodily integrity will be subject to heightened scrutiny to determine, inter alia, whether there are less intrusive alternatives available.” Id. at 44. Applying that standard, the First Circuit concluded:
A reasonable finder of fact could conclude that requiring the plethysmograph involves a substantive due process violation. The procedure, from all that appears, is hardly routine. One does not have to cultivate particularly delicate sensibilities to believe degrading the process of having a strain gauge strapped to an individual's genitals while sexually explicit pictures are displayed in an effort to determine his sexual arousal patterns. The procedure involves bodily manipulation of the most intimate sort. There has been no showing regarding the procedure's reliability and, in light of other psychological evaluative tools available, there has been no demonstration that other less intrusive means of obtaining the relevant information are not sufficient. Id. 560-63.
There is little doubt but that PPT is fundamentally Orwellian in its concept. It is thought-punishment. And it does indeed pose a litany of moral dilemmas for the criminal justice system because its potential for governmental abuse is staggering. In spite of these realities which were recognized by the Ninth Circuit, and the court’s finding that Weber had a substantial liberty interest at stake before this procedure can be employed, the appeals court nonetheless found that PPT serves legitimate societal interests; namely, protection of society from sex offenders and treatment of those offenders. Against this contradictory legal/factual backdrop, the Ninth Circuit concluded:
We conclude that, just as the particularly significant liberty interest at stake in Williams meant that “a thorough inquiry is required” before a district court may impose forced medication as a condition of supervised release, including “on-the-record medically-grounded findings,” Williams, 356 F.3d at 1055-57, so the particularly significant liberty interest in being free from plethysmograph testing requires a thorough, on-the-record inquiry into whether the degree of intrusion caused by such testing is reasonably necessary “to accomplish one or more of the factors listed in § 3583(d)(1)” and “involves no greater deprivation of liberty than is reasonably necessary,” given the available alternatives. Id. at 1057.
One critical determination that must guide a district court's inquiry as to whether the government has met its burden to show that plethysmograph testing is a necessary condition of a defendant's supervised release is whether such testing is reasonably necessary in that particular case to promote the goals “of deterrence, protection of the public, or rehabilitation of the offender.” T.M., 330 F.3d at 1240. Making such a determination requires consideration of evidence that plethysmograph testing is reasonably necessary for the particular defendant based upon his specific psychological profile.FN18 We expect that the probation officer or the district court will ordinarily consult the views of a psychologist or other expert as to the propriety of plethysmograph testing for the particular defendant, although there may be circumstances in which it is not necessary to do so. Cf. Williams, 356 F.3d at 1056 (requiring findings based on a “medically-informed record” before antipsychotic medication could be required as a term of supervised release).
Additionally, when engaging in this inquiry the district court must consider the particular sexual offenses committed by the defendant, as well as related offenses likely to be committed if he is not treated. Weber objects to the imposition of plethysmograph testing on the ground that his crime, possession of child pornography, does not warrant such a procedure, contending that plethysmograph testing is appropriate only for individuals who have committed, or attempted to commit, sexual acts directly against children. The district court is not, however, restricted to the crime of conviction in applying the “reasonably related” standard. Still, a generalized assessment based on the class of sex offenders generally, rather than on the particular sex offenses a defendant has committed or related offenses he is likely to commit if not treated, cannot fulfill the mandate that a term of supervised release satisfy the “reasonably related” standard.
In response to Weber's objection to the plethysmograph testing requirement, the district court noted that if, in the future, Weber thought that such testing “was medically not necessary,” he could “ask for a hearing” or “request a modification.” As we have explained, however, the burden is on the government, not the defendant, to establish at the time of sentencing that plethysmograph testing is both reasonably necessary “to accomplish one or more of the factors listed in § 3583(d)(1)” and “involves no greater deprivation of liberty than is reasonably necessary.” Williams, 356 F.3d at 1057 (internal quotation marks omitted). On remand, if the government continues to seek submission to plethysmograph testing as a condition of supervised release, then it must meet its burden of justifying the requirement, and the district court must make on-the-record findings that it has done so.
We note that our holding does not displace Rearden's general rule that, so long as the PSR adequately explains the relationship between proposed conditions of supervised release and the purposes those conditions are designed to serve, a district court usually need not specifically articulate those reasons on the record. As we noted in Williams, however, that general rule is subject to limited exceptions.
Today, we recognize that the imposition of plethysmograph testing implicates a sufficiently significant liberty interest to require heightened procedural protections similar to those established in Williams. Again, as in Williams with regard to forced medication, we are not holding that a district court may never impose plethysmograph testing as a condition of supervised release, only that “a thorough inquiry is required” before a court may do so. 356 F.3d at 1055.
Meanwhile, these special conditions are necessary to protect the public as the defendant undergoes treatment[. ] Pursuant to 18 USC 3583(d), conditions of supervised release must be reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant. Conditions Nos. 3 to 5, and 8 to 19 have been recommended as a result of the instant offense involving the possession of child pornography, which was collected and stored using his computer, and the history and characteristics of the defendant. Id., 568-70.
No one can question that sexual assaults of children is a pressing social problem that must be resolved. But the evidence is also overwhelming that there are a substantial number of media-inspired myths and distortions associated with this social problem. For example, all the prominent data clearly reveals that sex offenders respond better to treatment and have a significantly lower recidivism rate than non-sex offenders, contrary to popular opinion created by less-than-factual media reporting.
When it comes to the issue of sex offender treatment, however, the use of a device dependent upon “child pornography” as a tool to combat pedophilia begs scrutiny. Those charged with administering PPT must utilize illegal child pornography in the examination process. Surely, the nation’s criminal justice system can develop more, or at least equally, effective means of treating sex offenders than a process that depends upon sexual arousal through unlawful pornographic means. As Odeshoo put it:
In point of fact, the extent to which law enforcement agencies condone the use of explicit child pornography for PPG examinations is somewhat unclear. In some cases, producers of PPG stimulus materials have been forced by State Attorneys General to destroy pornographic depictions of children. In other cases, however, researchers have actually recommended local police departments, and even pedophiles themselves, as good sources for obtaining child pornography for use as stimulus materials. As noted above, the number of treatment programs administering PPG examinations is not known with complete certainty. As a result, it is impossible to ascertain how many programs currently utilize sexually explicit images of children. While many programs have moved to the use of non-nude or semi-nude images, or have abandoned the use of visual stimuli altogether, it is clear that many researchers still believe that explicit images can and should be utilized in conducting PPG tests.
It is important to note, moreover, that concerns about the use of child pornography cannot be sidestepped simply by abandoning the use of sexually explicit images of children. State and federal child pornography statues have broadened considerably over the past three decades. Many laws criminalize images that involve lascivious exhibition of the genitals. Under such statutes, images that are "lewd" fall within the definition of "child pornography" even when they do not depict sexual activity, and indeed even when they contain no nudity. Nor can the problem be avoided by abandoning visual images altogether and using only auditory stimuli for PPG examinations. Consider, for example, the recent case of Brian Dalton, a sex offender convicted under Ohio's "pandering obscenity" statute, which made it a crime to "[c]reate, reproduce, or publish any obscene material that has a minor as one of its participants or portrayed observers." Dalton, who had been convicted under the statute three years earlier for downloading child pornography from the Internet, was charged with a second violation of the law in 2001 when police found his diary, which contained fantasies describing the kidnapping and sexual torture of young children. If an individual can be punished for mere writings involving children, it is unclear why the narratives employed in PPG examinations may not similarly be deemed illegal. Notably, researchers using PPG have themselves expressed concern about the sexually explicit character of the auditory vignettes.
Until the late 1980s and early 1990s, the legal concerns about the use of child pornography in PPG examinations were virtually unmentioned. In part, this may be attributable to the fact that child pornography law itself is of relatively recent origin, dating back only to the late 1970s. With the passage of time, practitioners have come to show greater sensitivity to PPG's legal implications, a development that no doubt should be applauded. Nevertheless, greater dialogue between law enforcement agencies and PPG providers is necessary if the procedure is to be performed in a manner that is consistent with, or at least demonstrates some cognizance of, more recent developments in child pornography and obscenity law.
Yet the legal problems are ultimately of secondary importance. Even where PPG providers are able to obtain a dispensation from law enforcement authorities for the use of child pornography, the ethical and policy concerns linger. Although the concern might be articulated in a number of ways, the problem, simply put, is that sexualizing children is bad; using images calculated to excite sexual desire for children is exploitative. When the government engages in such tactics, it runs the risk of participating in the very evil it purports to eradicate.
Concern about the government's use of child pornography for the purpose of PPG examinations can perhaps be seen more clearly when viewed against the backdrop of other ways in which the government uses such materials. Of particular note is the elaborate way in which child pornography is used in the context of sting operations designed to enforce child pornography statutes. The tactics condemned by the Court in Jacobson provide only a faint glimpse of these efforts. As part of such operations, local law enforcement officials, along with customs and postal service agents, establish bogus organizations with names such as "Candy's Love Club," "Ohio Valley Action League," "Research Facts," "Midlands Data Research," "Project Sea Hawk," "Heartland Institute for a New Tomorrow," and "Freedom's Choice." They send questionnaires to suspected pedophiles, often over the space of several years, asking about their sexual interests. They disseminate newsletters containing pedophilic sexual fantasies, and even contain editorials supporting the right to possess child pornography. Ironically, the United States government is now the major source of child pornography in the country, private production of such material having virtually disappeared in the years following the passage of child pornography laws. Id., 33-35.
What does it say about our society when its law enforcement agencies become major producers of “child pornography” in a purported effort to combat pedophilia. Supporters of PPT respond that this law enforcement practice is necessary to fight child sexual abuse. Two researchers in this area went so far as to say that using images of nude children in PPT is no different than using such images in medical textbooks. See: Robert D. Card & Susan D. Olsen, Visual Plethysmograph Stimuli Involving Children: Rethinking Some Quasi-Logical Issues, 8 Sexual Abuse: J. Res. & Treatment, 267, 268 (1996)
The parents who are so concerned about protecting their children from pedophiles certainly would not let photos of their children be used to sexually arouse pedophiles as part of a treatment program. But someone’s child is being used to make those horrendous pornographic images, someone’s child is being used to erotically arouse pedophiles in PPT treatment programs. As Odeshoo pointed out: “.. many commentators have argued, and as courts have long recognized [that] children possess rights of their own. The precise point at which parental authority ends and children's rights begin is contested, but at the very least, one cannot simply assume the legal and moral acceptability of a parent's decision to allow nude pictures of his or her child to be taken and displayed to sex offenders.” Id., at 36
The nation’s law enforcement agencies have a long history of engaging in illegal and unethical conduct to entrap criminal defendants. For example, in the 1970s during the FBI’s investigation of the Weather Underground the agency encouraged a undercover a female operative to get pregnant with targets and paid for her resulting abortion. See, United States v. Shoffner, 826 F.2d 619, 625 (7th Cir. 1987). See also: Marx, Gary T. “Under-the Covers Undercover Investigations: Some Reflections on the State's Use of Sex and Deception in Law Enforcement,” 11 Crim. Just. Ethics 13 (1992)[government informants using sex as means to gather evidence]; Daloia, Andrea B., “Sexual Misconduct and the Government: Time to Take a Stand,” 48 Clev. St. L. Rev. 793, 815-25 (2000)[federal/state undercover agents involved in sexual relationships with targets of investigations].
And age does not matter in the law enforcement quest to “make a case.” For example, Marx and Daloia pointed to a California case where law enforcement used a young female undercover agent as a “loose woman” willing to trade sex for drugs. See: People v. Martinez, 203 Cal.Rptr. 833 (Cal.Ct.App. 1984). See also: Daloia, supra, at 815-25; Marx, supra, at 13.
Marx also pointed out how law enforcement has involved itself in the dirty business of making pornographic movies used in criminal investigations and used “brothels” in sting operations. See, Marx, supra, at 13. See also: United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000)[conviction involving defendant crossing state lines for purpose of engaging in sex act with minor reversed because government’s use of agent posing as mother seeking “sexual mentor” for her three daughters induced defendant to commit crime].
Mark Poehlman was a member of the Air Force. He was also a cross-dresser with a foot fetish. He went to the Internet in search of “like-minded” adults. What he found were federal agents trolling the Internet in search of child predators. Id. Poehlman found, like so many others, that traveling down the “HOV lane” of the “information superhighway” is fraught with peril. The Ninth Circuit described his journey:
Eventually, Poehlman got a positive reaction from a woman named Sharon. Poehlman started his correspondence with Sharon when he responded to an ad in which she indicated that she was looking for someone who understood her family's “unique needs” and preferred servicemen. Poehlman answered the ad and indicated that he “was looking for a long-term relationship leading to marriage,” “didn't mind children,” and “had unique needs too.” Reporter's Transcript of Proceedings, United States v. Poehlman, No. CR 97-1008-SWK, Thurs., May 21, 1998 at 26 (Testimony of Mark Poehlman).
Sharon responded positively to Poehlman's e-mail. She said she had three children and was “looking for someone who understands us and does not let society's views stand in the way.” She confessed that there were “some things I'm just not equipped to teach [the children]” and indicated that she wanted “someone to help with their special education.”
I'll tell you a little about myself. I'm 30, divorced and have 3 children. We are a very close family. I'm looking for someone who understands us and does not let society's views stand in the way. I've had to be both mother and father to my sweethearts, but there are some things I'm just not equipped to teach them. I'm looking for someone to help with their special education.
If you have an interest, I'd love to hear your ideas, desires and experiences. If this doesn't interest you, I understand.
Appellant's Excerpts of Record at Tab 5 (July 27, 1995).
In his next e-mail ,,, Poehlman disclosed the specifics of his “unique needs.” He also explained that he has strong family values and would treat Sharon's children as his own. Sharon's next e-mail focused on the children, explaining to Poehlman that she was looking for a “special man teacher” for them but not for herself. She closed her e-mail with the valediction, “If you understand and are interested, please write back. If you don't share my views I understand. Thanks again for your last letter.” Appellant's Excerpts of Record at Tab 5 (Aug. 1, 1995).
I am retired Air Force after 16.8 years I took the early retirement, decided it was time to get out and work for a living again..(g) I am extremely honest and straight forward type of guy I don't play head games and don't like to have them played against me. I tell you straight out and open that I am a in house tv, meaning I rather enjoy wearing hose and heels inside the house, not around small children of course but when mine are old enough to understand I will tell them that and the big foot fetish I have are about my only two major problems that need a open minded easy going woman, so as they say in the movies if you don't mind me wearing your hose and licking your toes then I am open for anything..(g),, I also have a sense of humor. as far as your children are concerned I will treat them as my own (as I would treat my boys if I had them with me) I have huge family values and like kids and they seem to like me alright too. well now you know all about me, if you are still interested then please write back, if not and I would understand why you didn't then I wish you all the best in finding the person you are looking for. if you wish to call my number is 904-581-5442, I am not home a lot due to work and school but there is an answering machine that only I listen to, ( I you didn't th live alone) have a nice day. Mark
Appellant's Excerpt of Record at Tab 5 (July 31, 1995).
Poehlman replied by expressing uncertainty as to what Sharon meant by special man teacher. He noted that he would teach the children “proper morals and give support to them where it is needed,” id. (Aug. 2, 1995), and he reiterated his interest in Sharon.
Hi Sharon,so happy to finnally learn your name, I am interested in being this special teasher, but in all honesty I really don't know exactly what you expect me to teach them other than proper morals and give support to them where it is needed.
Can I ask how old your sweethearts are and if you don't mind telling me what kind of teachings do you expect me to give them? But I will tell you that I am interested in their mom too, you would be part of the picture with them right? this is why I tell you all about myself and what I like, cause I ahve to be honest and tell you I would hope you would support and enjoy me sexually as well as in company and hopefully love and the sexual relations that go with it.
Hope you are well and your sweethearts are well too, I truly hope to hear from you and hopefully some more information about what you are looking for.. till then Have a very nice day. Mark.
Appellant's Excerpts of Record at Tab 5 (Aug. 2, 1995).
Sharon again rebuffed Poehlman's interest in her: “One thing I should make *697 really clear though, is that there can't be anything between me and my sweethearts special teacher.” Id. (Aug. 2, 1995). She then asked Poehlman for a description of what he would teach her children as a first lesson, promising “not to get mad or upset at anything written. If I disagree with something I'll just say so. I do like to watch, though. I hope you don't think I'm too weird.” Id.
Poehlman finally got the hint and expressed his willingness to play sex instructor to Sharon's children. In later e-mails, Poehlman graphically detailed his ideas to Sharon, usually at her prompting. Among these ideas were oral sex, anal sex and various acts too tasteless to mention. The correspondence blossomed to include a phone call from Sharon and hand written notes from one of her children. Poehlman made decorative belts for all the girls and shipped the gifts to them for Christmas.
If they are all girls then I would help them to learn how to protect themselves by taking control over men I can be very submissive to the right women, though they will learn the right way to dress least in the house, you would be expected to dress as them also and prove to be a good example for them or face punishment.
Appellant's Excerpts of Record at Tab 5 (Aug. 3, 1995).
Poehlman and Sharon eventually made plans for him to travel to California from his Florida home. After arriving in California, Poehlman proceeded to a hotel room where he met Sharon in person. She offered him some pornographic magazines featuring children, which he accepted and examined. He commented that he had always looked at little girls. Sharon also showed Poehlman photos of her children: Karen, aged 7, Bonnie, aged 10, and Abby, aged 12. She then directed Poehlman to the adjoining room, where he was to meet the children, presumably to give them their first lesson under their mother's protective supervision. Upon entering the room however, Poehlman was greeted by Naval Criminal Investigation Special Agents, FBI agents and Los Angeles County Sheriff's Deputies. Id., 695-97.
Poehlman was charged under California law with attempted lewd acts with a minor. Following a jury trial, he was convicted in state court and sentenced to two years in state prison. He served his time and was released. He was then re-arrested. This time by federal agents. The federal government charged him with crossing state lines for the purpose of engaging in sex with a minor under 18 U.S.C. § 2423(b) based on the same incident that sent him to state prison. He was sentenced to 121 months in federal custody. Fortunately, the Ninth Circuit reversed his conviction, finding he had been entrapped by law enforcement into committing the crime. Id., at 697.
While the Poehlman case is the exception because it was reversed for entrapment, the law enforcement tactics used in that case are the rule rather than the exception. PPT operates with the same premise – entice the subject to have an erection by showing him pornographic images of children. Law enforcement uses agents trolling on the Internet holding out the promise of child sex to potential child predators. Both are “thought police.”
George Orwell’s “1984” predicted a future where people would be punished for their “thoughts.” That future has arrived.