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.