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June 20, 2006

Ninth Circuit as phallus protector

This opening paragraph of the Ninth Circuit's interesting ruling today in US v. Weber, No. 05-50191 (9th Cir. June 20, 2006) (available here), certainly should grab your attention:

Penile plethysmograph testing is a procedure that "involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses." Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004).  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.  We address the procedures that must be followed before a district judge may impose such a requirement on a criminal defendant.

Intriguingly (and unsurprisingly?), Judge Berzon, the sole female member of the Ninth Circuit panel to hear this case, authored the opinion for the court. 

Based on a quick first review, I probably should add a "for mature audiences only" warning in my link to the Weber opinion.  It also would be in very bad taste to encourage jokes about this important issue (though I suppose I could provide this link to a long list of interesting slang words for readers who might not be as respectful as me).

June 20, 2006 at 01:19 PM | Permalink


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If for nothing else, this is a great opinion because it shows the steps that must be taken before a sentencing judge can impose certain types of conditions of supervised release and it shows that the government bears the burden of proving that some types of conditions should be imposed. Beyond this, Judge Noonan's powerful concurring opinion is worth reading.

Posted by: doug | Jun 20, 2006 6:40:48 PM

Having some background in this area, I can say that Judge Berzon's opinion is excellent, though I find myself in agreement with Judge Noonan's concurrence.

For a great article on the history of penile plethysmographs, see Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004), which gets an honorable mention in the majority opinion.

Missing from the opinion however, is another "wonderful" article that tangentially addresses the same issue: Male Sexual Assault: Issues of Arousal and Consent, 51 Clev. St. L. Rev. 93 (2004). Okay, I'll admit it, I'm a little biased since I wrote it. :)

Posted by: Siegmund Fuchs | Jun 20, 2006 10:26:19 PM

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