While this is not a CC case, CC folks need to know about this decision. Also look into the Washington state CC decision which mirrors this non CC case.10-4-2013 New York:
Subjecting a sex offender who is no longer imprisoned to "extraordinarily invasive" penile stimulation testing risks violating the premise that even convicts retain their humanity, a federal appeals court said Thursday.
The ruling by the 2nd U.S. Circuit Court of Appeals (USA v McLaurin) in Manhattan frees former police officer David McLaurin of a requirement that he submit to penile plethysmography, a test in which a man's erectile responses are measured as he is shown sexually stimulating images.
An all-male three-judge appeals panel said it saw a "clear distinction" between penis measurement and other conditions of supervised release, including restrictions on where sex offenders may live, their interactions with children and their access to pornographic material.
"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," the court wrote of the conditions imposed after someone completes a prison sentence. "A person, even if convicted of a crime, retains his humanity."
McLaurin, 48, challenged the requirement after a Vermont judge sentenced him to 15 months in prison, to be followed by a treatment program that could include the testing, because McLaurin failed to fill out paperwork required by sex offenders. McLaurin had notified authorities that he would be working as a chef at a Putney, Vermont, inn in 2011, but he later lost the job and went to the Birmingham, Alabama, area, where he was arrested. He was returned to Vermont to face charges and was released from prison in November.
