Appeals Court Rejects Arousal Test for Sex Offender

A periodic test that measures a man’s response to erotic images is “Orwellian” because it examines his mind, not just his body, and should not be used because it deprives him of more freedom than necessary, a federal appeals court ruled Tuesday.

In order to be released from prison, U.S. District Judge Dean Pregerson had ruled in 2001, Matthew Weber would have to subject himself to tests in which a pressure-sensitive electronic device is placed around the penis and the response to stimulating images is monitored, said his lawyer, Jonathan Libby.

Weber was charged with possessing child pornography on his computer, pleaded guilty and was sentenced to 27 months in prison and three years of supervised release. But he objected to the penile plethysmograph test, which has been used as part of sex offender treatment programs.

The U.S. 9th Circuit Court of Appeals agreed with him, saying the test would deprive Weber of his liberty more than “was reasonably necessary.”

In a unanimous decision, a three-judge panel vacated Pregerson’s judgment Tuesday and sent Weber’s case back to District Court.

The test was developed by Czech psychiatrist Kurt Freund to study sexual deviance, but it was eventually used by the Czechoslovakian government to find and “cure” homosexuals, the appellate court opinion said, citing David M. Friedman’s 2001 book, “A Mind of Its Own: A Cultural History of the Penis.”

Weber, who was charged and convicted after a repair shop found child porn on his computer, argued that the test should be reserved for people who had molested children or tried to do so. The government countered that actual assault isn’t a requirement for the test.

Libby said the test is typically tied in with treatment programs for sex offenders when they are sentenced. And every time they are, Libby and the other lawyers on his team object.

Proponents of the test have argued that its helps in sex-offender treatment programs, which could also include lie-detector testing and psychiatric medication. Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles, said the ruling “will have no effect on our aggressive enforcement program.”

But critics, including the American Psychiatric Assn., have called the test unreliable, according to the appellate court’s opinion.

Libby said Tuesday’s ruling doesn’t outlaw the test, but he added that 9th Circuit Judge John Noonan’s written concurrence in the ruling suggested that could happen eventually.

Noonan called the test Orwellian because it would not only measure Weber’s genitalia but also probe his “innermost thoughts as well.”

“A prisoner should not be compelled to stimulate himself sexually in order for the government to get a sense of his current proclivities,” Noonan wrote in his concurrence with Judge Marsha Berzon’s opinion. “There is a line at which the government must stop. Penile plethysmography testing crosses it.”