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NY court finds 'invasive' penile stimulation test unjustified

By Joseph Ax

NEW YORK (Reuters) - A man convicted of failing to register as a sex offender cannot be forced to undergo penile stimulation tests to determine how likely he is to commit future crimes, a federal appeals court in New York ruled on Thursday.

The procedure, known as penile plethysmography, has been imposed in some sex crime cases as a condition of post-conviction release, in part to estimate the likelihood of recidivism. But some experts question its reliability.

The 2nd U.S. Circuit Court of Appeals called it an "exceedingly invasive procedure" that was not justified by public safety, therapeutic benefits or deterrence in the case of David McLaurin, an Alabama man convicted in 2012.

The practice uses a device to measure erectile response over the course of two or three hours as the subject watches pornographic images to determine what arouses him sexually.

The test was developed by a Czechoslovakian psychiatrist decades ago and was at one time used by the Czech government to identify and "cure" homosexuals, according to the court.

"We see a clear distinction between penis measurement and other conditions of supervised release which are reasonably calculated to protect the public," such as requiring registration or restricting contact with children, a three-judge panel wrote.

McLaurin was first convicted in Alabama for taking topless pictures in 2001 of a 13-year-old girl, who told authorities she had asked for the photo shoot to help her modeling career.

In 2011, he moved to Vermont for a new job and informed authorities in Alabama. But he failed to fill out the proper paperwork registering as a sex offender and eventually pleaded guilty to violating the federal registration law.

U.S. District Judge William Sessions in Vermont sentenced McLaurin to 15 months in prison and five years of supervised release. As part of the conditions for release, McLaurin was ordered to submit to penile plethysmography.

The 2nd Circuit expressed skepticism that the treatment is effective but emphasized that McLaurin's criminal history did not justify its use regardless of its efficacy.

"We fail to see any reasonable connection between this defendant, his conviction more than a decade ago, his failure to fill out paperwork, and the government-mandated measurement of his penis," Judges Guido Calabresi and Barrington Parker wrote for the court.

Other Vermont judges have ordered the procedure as a condition of post-conviction treatment, but the court noted that the Vermont probation office no longer recommends the practice.

The U.S. Attorney's office in Vermont did not respond to a request for comment. McLaurin's court-appointed lawyer also did not respond.

(Editing by Doina Chiacu)

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