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Abstract
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John is a nineteen-year-old boy. He lives in an affluent area in a house with both of his parents and a younger sister. John suffers from crippling anxiety. He cannot go out in public, and he dislikes anyone outside of his immediate circle. It was not always this way though.
Last year, John made good grades and played on the high school football team. He was by all accounts, a very normal and well-adjusted teenage boy. One day, eighteen-year-old John took consensual nude photographs of his seventeen-year-old girlfriend. A few days later, John bragged to his buddies about these pictures while in the locker room before football practice. John's friend, Brad, responded that he did not believe John's girlfriend would let him take pictures. John, not wanting to be made fun of by the rest of the guys, grew defen- sive and replied that he would post it on the team's Facebook page after practice. That night, upon receiving the image, one of the boys candidly told his father about the picture. The father, concerned that a picture was circulating of an underage girl, called the police.
One month later, John found himself in front of a judge where he was convicted of production and distribution of child pornography. Though John was a first-time offender, the judge viewed John as an entitled jock and imposed a harsh sentence in an attempt to deter other young adults from committing similar crimes. The sentence it- self required only a few months of incarceration, however, as a condi- tion of supervised release, the judge ordered John to undergo monthly penile plethysmograph testing...
While penile plethysmograph testing might have some putative value due to its humiliating and degrading nature, the results of such testing mean very little in a courtroom setting as they cannot be admitted into evidence and are merely used for probative value. Moreover, the blatant gender disparity in courts only mandating plethysmograph testing on men demands that a heightened scrutiny analysis be applied under the Equal Protection Clause. Currently, the few jurisdictions aside from the Fourth Circuit that still impose pe- nile plethysmograph testing use some form of heightened scrutiny. Though no case has come before the Supreme Court to decide this issue, given the strong weight of evidence against penile plethys- mograph testing, the Fourth Circuit's deference to judicial discretion without some sort of heightened review is not a strict enough standard to reasonably impose testing as a condition of supervised release.
Available: https://scholarship.law.wm.edu/wmjowl/vol24/iss3/6
Language: en |