Academic journal article Vanderbilt Law Review

Penile Polygraphy: The Admissibility of Penile-Plethysmograph Results at Sentencing in Tennessee

Academic journal article Vanderbilt Law Review

Penile Polygraphy: The Admissibility of Penile-Plethysmograph Results at Sentencing in Tennessee

Article excerpt

Introduction

During the late 1950s, the Soviet Czechoslovakian government subjected countless homosexual men to an astonishingly intrusive physical examination to discover whether the men's professed sexual preferences were what they claimed.1 Using a device developed by czech researcher Kurt Freund,2 officials placed a cylinder around each man's penis and forced him to view photographs of nude men, women, and children. Each man's erectile response was measured by the air displaced from the cylinder, thus exposing which pictures sexually aroused him. The goal was to discern the "true homosexuals" from those who were faking their homosexuality only to avoid service in the Czechoslovak People's Army.3 This device, known as the penile plethysmograph ("PPG"), has been continuously used since the 1950s in sexual-behavior research and has evolved into a tool for determining deviant sexual arousal (e.g., pedophilia and sadism).4 In Tennessee as well as many other states, PPG testing is used extensively in the assessment and treatment of any individual convicted of a sex offense, usually as part of a clinically performed psychosexual evaluation to determine the individual's sexual development, history, interests, and recidivism risk.5

Psychosexual evaluations are regularly included as factors in sex-offender risk assessments. Clinicians often use these assessments to provide individualized guidance to judges, who use risk assessments at different stages of the criminal justice system, such as in pretrial detention, sentencing, and parole decisions.6 In Tennessee, it is statutorily mandated that sentencing judges receive the results of these psychosexual evaluations and consider them when sentencing convicted sex offenders.7 One optional portion of the evaluation is a modern version of the PPG test first used in Czechoslovakia, which is designed to accurately represent an offender's deviant sexual arousal and thus level of risk.8 Its use is attributable to the Tennessee Sex Offender Treatment Board ("Board"), which endorses psychosexual evaluations that include PPG testing.9 The state legislature has given the Board oversight responsibility for the assessment and treatment of convicted sex offenders.10 Due to the statutory requirements for risk assessments and the Board's support of PPG testing, the legal environment surrounding the use of PPG in Tennessee's criminal justice system provides ample opportunity for reform.

PPG testing's high level of intrusiveness necessitates an equally high level of scrutiny before the results of such tests can influence the decision whether an individual is incarcerated or sentenced via Tennessee's alternative sentencing scheme.11 The ethical and practical limitations of PPG testing should be considered, in addition to both the rules of evidence and the utility of the results in determining recidivism risk. Particularly, the purpose for which PPG results are admitted has significant influence on its admissibility under the rules of evidence. Unfortunately, judicial scrutiny of the admission of PPG results at sentencing is lacking in Tennessee. The sole judicial opinion to discuss the admissibility of PPG testing as a component of a sentencing risk assessment, State v. Edwards, was in a case that was ultimately dismissed for insufficient evidence.12 Thus, the analysis of the presentencing risk assessment was immaterial to the decision and considered nonbinding dicta. Yet the inquiry by the Tennessee Court of Criminal Appeals is valuable because it concluded that the test was not intended to be an evaluation tool and thus failed the expert evidence threshold requirement of reliability contained in Tennessee Rule of Evidence 702.13 The court further analogized to polygraph evidence, which is considered inherently unreliable, and held that a psychosexual evaluation is inadmissible when it relies on either PPG or polygraph results.14

While not explored in much depth by the court in Edwards, PPG results serve the same evidentiary goal as polygraph results- establishing the accuracy of the offender's self-report on his own arousal or, more generally, the creditability of the offender. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.