2nd Circuit Disconnects Dad’s Penis Monitoring

MANHATTAN (CN) - Ordering a man who photographed his daughter topless to watch pornography while wearing a device monitoring the blood flow to his erect penis was an "extraordinarily invasive condition"of dubious medical value, the 2nd Circuit ruled Thursday.

In 2001, David McLaurin, then living in Alabama, admitted to taking a half-nude photograph his 13-year-old daughter, who told investigators that she was building a portfolio for her modeling career.

Most of the father's 10-year sentence for making child pornography was suspended, but he had to register as a sex offender under federal law. He complied with his reporting requirements by telling authorities that he was moving to Vermont in 2010, but he violated its terms by failing to fill out the paperwork.

At sentencing, U.S. District Judge William Sessions III found that McLaurin did not try to hide and that he was unlikely to reoffend. But the federal judge nevertheless sentenced him to 15 months in prison, five years of supervised release, and forced him to submit to penile plethysmograph examinations, describing the test as "standard."

Three judges of the 2nd Circuit Court of Appeals called the last requirement an "abuse of discretion" Thursday, in an 11-page opinion detailing the technology's sordid history.

Czech psychiatrist Kurt Freund developed plethsymograph testing as a "means to study sexual deviance," and his former Soviet nation used the invention to identify and "cure" homosexuals, according to the opinion. It states that the procedure lasts between two and three hours and may force the subject to "masturbate to establish a baseline for measurement."

U.S. Circuit Judges Guido Calibresi and Barrington Parker, who co-authored the opinion, doubted that it had "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," they wrote. "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."

Prosecutors presented no evidence that the so-called "standard" procedure was accepted by the scientific community or had any therapeutic benefit tested by peer-reviewed studies, according to the opinion.

"In any event, we also 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 judges wrote. "In short, the government offers no compelling justification for plethysmography in the name of deterring crime."

Nor were the judges convinced that it was necessary for McLaurin in particular.

"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," the opinion states. "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.

Earlier in the opinion, the judges reminded the prosecutors, "A person, even if convicted of a crime, retains his humanity." McLaurin's federal defender and prosecutors did not immediately reply to a request for comment.

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