2nd Circuit: No Connection between “Fluctuating Penis Size and Public Protection”

On Thursday, the 2^nd U.S. Circuit Court of Appeals in Manhattan held that subjecting a sex offender to extraordinarily invasive penile stimulation testing runs the risk of violating the premise that even convicts retain their humanity. In the instant case, authorities tried to subject former police officer David McLaurin, who is no longer in prison, to penile stimulation testing.

The three-judge panel said there was a clear distinction between other conditions of supervised release including penis measurement, restrictions on choice of residence, restrictions on interactions with children, restrictions on access to pornographic material, and the penile stimulation tests where a man is shown sexually stimulating images to measure his erectile responses.

The 2^nd Circuit observed, “But we see no reasonable connection between fluctuating penis size and public protection – certainly none strong enough to survive the careful scrutiny that we give to unusual or severe conditions of supervised release.”

McLaurin had challenged the requirement after the trial judge sentenced him to 15 months in prison followed by a treatment that could include the testing.

McLaurin had notified authorities that he was taking a job as a chef at an inn, but lost his job subsequently. Then he went to Alabama where he was arrested and returned to Vermont to face charges. He went to prison and was released last November.

About a decade ago, a 13-year old girl had requested a photo shoot to help her modeling career. The girl admitted the same to the authorities. However, McLaurin was convicted for producing child pornography as he conducted the photo shoot and included topless photos of the girl. He was required to register as a sex offender for that.

In its opinion the 2^nd Circuit also observed about the penile testing requirement, “We hold this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin’s right to substantive due process.”

The 2^nd Circuit found it was very “odd” that authorities showed sexually explicit images to someone in order to deter him from committing sex crimes.