Plethysmographs - A Violation of Substantive Due Process.

In United States Court of Appeals v. David McLaurin the court was to decide if the District of Vermont’s imposition on the defendant, as a condition of supervised release, which may involve treatment that might include penile plethysmography testing, is legal.

In September 2011 the defendant was indicted in Vermont for violating the Sex Offender Registration Act (SORNA). After serving fifteen months in prison, McLaurin was placed on five years supervised release, and one of the conditions of that release was sex offender treatment, which potentially included plethysmograph examinations. Penile plethysmography is a procedure that lasts two to three hours and “involves placing a pressure-sensitive device around a man’s penis, presenting him with an array of stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.” United States v. Weber, 451 f.3d. 552, 563 (9th Cir. 2006).

The court of appeals stated that substantive due process prohibits the government from invading personal immunities, and that plethysmograph testing not only encompasses a physical intrusion but a mental one. Also, the court argues against the reliability of the procedure, and believes that even if the procedure were reliable that it is not done in a correctional capacity. Further, the court noted that it is strange that the Government would use a procedure created to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime conviction. The court also sees no reasonable connection between fluctuating penis size, which is the standard measured in plethysmograph treatment, and public protection. Finally, the court noted that McLaurin’s crime was failing to complete paperwork, and that his only conviction for an actual sexual offense was more than ten years before his failure to file with (SORNA) The court vacated the condition of supervised release and remanded this case to the district court.


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