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9th Circuit Court of Appeals, regarding United States v. Weber

Peter M. Byrne, PhD

As many of you may be aware there has been a recent published opinion by the 9th Circuit Court of Appeals, regarding United States v. Weber. The press may have been a little alarming due to a number of conclusions that are drawn about penile plethysmograph testing and the Court procedures that must be followed before a district court judge may impose such a requirement on a criminal defendant. In a few states the use of the PPG has been suspended temporarily as a result of this opinion, though our legal experts advise that this is not a precedence setting case. Unfortunately the decision was based on information that was faulty, general and supplied by an attorney rather than a PPG expert.

Therefore I would like to provide you with an overview of this case and factual information that will be helpful for you to understand this ruling and potentially overcome legal objections. This information may also assist your local attorneys in prosecuting cases of this nature.

Overview

In this case, Weber was convicted of possessing child pornography and ordered to a term of incarceration followed by a period of supervised release. As part of his supervised release conditions, including sex offender treatment and “The defendant shall abide by all rules, requirements, and conditions of such program, including submission to risk assessment evaluation, and physiological testing, such as polygraph, plethysmograph, and Abel testing and shall take all prescribed medication.” (p. 6803).

Weber objected to the condition of possibly having to take the penile plethysmograph. At the District level, the judge overruled his objection and thus Weber appealed to the 9th Circuit. His contention was that the penile plethysmograph is not reasonably related to the purposes of deterrence, rehabilitation, or protection of the public; and second the testing requires “a greater deprivation of liberty than is reasonably necessary” (p. 6813).

The Court’s statutory concerns about the significant liberty interest regarding the penile plethysmograph appear to be at the center of their opinion. However, what we have discovered is that the court was provided dubious definitions of the methodology of PPG as a whole and then based liberty issues on those faulty descriptions.

The Opinion’s Analysis of the Penile Plethysmograph

The opinion opens with a characterization of penile plethysmograph testing. This definition came from a lawyer who published the article “Of Penology and Perversity: The Use of the Penile Plethysmography on Convicted Child Sex Offenders” in a law journal. It appears that the Opinion relied heavily on this article which provides a general characterization of PPG’s which may be true in some cases but not with the Monarch and Monarch 21 PPG and the essential training that is mandated as part of your sales agreement.

Some of the quotes that are generalized and misrepresent the PPG’s performed by Monarch 21 sites include the following:

“…involves placing a pressure sensitive device around a mans penis” implying that this is done by the technician rather that the individual which is a liberty issue.

“…presenting him with an array of sexually stimulating images.” Monarch 21 stimuli are non- pornographic.

“He is instructed to let himself become aroused in response to any of the materials that he finds sexually exciting.” These words are not indicative of the instructions read prior to a Monarch 21 test.

Thus it can be seen that the court has laid out a description that classifies all PPG’s as requiring the subject to stimulate himself, view and hear sexually explicit slides and audio vignettes.

The opinion also clearly laid out some biases, however these biases are directly related to faulty descriptions relied upon by the Opinion to reach their conclusions.

In the entire opinion there is no mention of the scientifically verified connection between deviant arousal as measured by the PPG and sexual recidivism among sexual offenders.

Hanson and Bussiere, in their study of 61,000 sexual offenders found the following: “Deviant sexual arousal as measured by phallometry was found to be the single best predictor of sexual recidivism among child molesters.” The finding was found to be not as strong, but still significant in a subsequent meta-analysis. (Hanson & Morton, 2006)

What to Do

The basis of the 9th circuit legal opinion is that the use of the PPG constitutes a “significant liberty interest involving a greater deprivation of liberty that is reasonably necessary.” At the heart of their logic is a faulty definition of PPG, problems with their liberty interest analysis, reliance upon the opinion of an attorney not a PPG expert, and not having critical information and research about PPG.

The first strategy is to educate the court. The main issue here is that deviant responses on the PPG have been found to be one of the best predictors of sexual recidivism among child molesters (Hanson & Bussiere, 1988; Hanson& Morton, 2005) This finding by itself substantiates the use of PPG in supervised release because it deals with the issue of public safety.

The second strategy is to avoid the inflammatory definitions by making your PPG different…insuring that your PPG’s are done to the standards of Monarch 21 with standards including:

Non-pornographic, projective audio stimuli that are not explicit
Use of “clothed” visual stimuli that are not pornographic
Avoid making discriminations based on “minute changes” by adhering to “minimum significance values” as taught in training
Use raw scores and z-score data transformation, not percent full erection
Instruction procedures for how the client places the penile gauge on themselves
The client should be in an isolated room or a room comprised of significant barriers of approximately six feet high, like the cubicle dividers used in offices.
Never allow a PPG to determine guilt or innocence.
Finally, it can be pointed out that the Monarch 21™ PPG is employed identically in terms of stimuli, training, and procedures in over 100 labs in the US and abroad.

Behavioral Technology, Inc. is currently preparing a full response to the 9th Circuit opinion. In addition we are preparing relevant information to be sent to Prosecuting Attorneys across the country as a first step to educate the Courts on the validity of a properly administered standardized PPG that has been validated scientifically.

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