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November 6, 2007

Virginia Supreme Court rejects reliance on penile plethysmograph in presentence report

Valogosmall Regular readers know from prior posts here and here, the use of penile plethysmography (PPG) has generated a number of notable legal disputes.  And, thanks to this post at AL&P, I see that the Virginia Supreme Court last week issued this interesting ruling in Billips v. Virginia concerning "the admissibility of opinion evidence based upon plethysmograph testing at a sentencing proceeding."  (We all had to know this issue would come up in Virginia given the state's legendary slogan.)

The two opinions in Billips have various interesting aspects, and this section of the concurring opinion highlights that Billips majority perhaps can be read to support an argument for defendant's receiving full trial protections at sentencings:

The majority’s holding is particularly troublesome to me because, in this case, we are concerned only with the admissibility of evidence contained in a pre-sentence report prepared in accordance with the provisions of Code §§ 19.2-299 and –300.  Such a pre-sentence report is considered only by a trial court in its sentencing decision.  The majority applies the evidentiary rule set forth in Spencer even though there is a relaxed standard governing admissibility of evidence contained in a presentence report.

Some related prior posts:

November 6, 2007 at 05:35 PM | Permalink


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» Virginia on the penile plethysmograph from Appellate Law
Supreme Court says: Inadmissible. Oh by the way, most many middle-aged men use a plethysmograph to check their blood pressure. It is only the penile kind that is dirty. Strangely, Virginia has a “per se admissible” rule regarding fingerprint analysis. [Read More]

Tracked on Nov 6, 2007 6:07:49 PM


I consider penile plethysmographs, at least the way they're used with sex offenders, absurdist pseudoscience that make polygraphs look reliable. History will consider this technique, IMO, as the psychiatric equivalent of using leeches to bleed a fever: Ignorant and quaint, at best, but more probably as simply misguided and needlessly humiliating. Good for Virginia. I hope it launches a new trend.

Posted by: Gritsforbreakfast | Nov 7, 2007 7:34:35 PM

You gotta be making this up.

Posted by: M. P. B. | Nov 8, 2007 1:02:42 AM

Nah, there are PP cases from many jurisdictions.

Posted by: S.cotus | Nov 8, 2007 8:38:09 AM

I learned recently that some Texas jurisdictions use them on kids, S.cotus, no kidding!

They have one or two actual medical uses. E.g., they use PP for men with impotency during their sleep to see if the cause is physical or psychological (if the latter, they may still get erections in their sleep). But measuring the marginal gradation of an erection is a fool's game. I'm amazed this junk science is still used in good faith by so-called professionals, but as you say, it's pretty common.

Posted by: Gritsforbreakfast | Nov 8, 2007 12:04:15 PM

Mosts Courts of Appeal to address them head-on have rejected them. But, many of these issues never make it.

Posted by: S.cotus | Nov 8, 2007 12:38:48 PM

I don't know. While I hate torturing sex offenders, especially those who have served their sentences, PP senses sexual arousal via erection in men. This is the same technology used in a recent study that shows outwardly, admittedly homophobic men who watch homosexual male porn (with PP attached) get aroused while men who are admittedly not homophobic, and comfortable with their sexuality, who watch homosexual male porn do not get sexually aroused. I've long hypothesised that homophobic men are closet homosexuals, or at least have homosexual urges which they fear and try to hide via outward hatred of homosexuals. Just look at the Republican party as evidence of this; the most homophobic republicans are the ones caught having gay sex.

So, I think PP is accurate in terms of measuring (or at least noting the presence of) sexual arousal. Logically, how could it not be?

The question is, whether it should be used on sex offenders as a basis of revoking or denying their probation or parole. The answer to that question is absolutely not. It's not illegal to be sexually attracted to children, only to act upon it. PP on those convicted of child-related sex crimes provides cumulative data, at best. It tells us what we already know -- that they're attracted to kids. So what? Just arrest them if they molest/rape someone, and leave them alone otherwise.

Posted by: bruce | Nov 10, 2007 6:46:04 AM

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