In general, phallometric test results are employed as part of the sentencing and rehabilitation phase of forensic systems, but
not for determining whether a specific defendant is guilty of any specific offense against any specific person.
United States Use as trial evidence In the
United States, a scientific technique could not be used as evidence in court unless the technique was "generally accepted" as reliable in the relevant scientific community. This was known as the
Frye standard, adopted in 1923. In 1993, the doctrine was rejected by the
Supreme Court of the United States in favor of a more comprehensive "reliable foundation" test in
Daubert v. Merrell Dow Pharmaceuticals. In the
Daubert standard, the "generally accepted" test was no longer determinative. Several other factors could now be considered, including whether the technique had been published and peer-reviewed. Myers notes, "Courts that have considered penile plethysmography generally rule that the technique is not sufficiently reliable for use in court." In
United States v. Powers the court excluded the penile plethysmograph test because it failed to qualify under Daubert's scientific validity prong for two reasons: the scientific literature does not regard the test as a valid diagnostic tool, and "a vast majority of incest offenders who do not admit their guilt, such as Powers, show a normal reaction to the test. The Government argues that such
false negatives render the test unreliable." According to Barker and Howell, penile plethysmography (PPG) does not meet the legal threshold for the guilt phase for the following reasons: • No standardization • Test results are not sufficiently accurate • Results are subject to faking and voluntary control by test subjects • High incidence of false negatives and false positives • Results are open to interpretation They concluded, "Until a way can be devised to detect and/or control false negatives and false positives, the validity of the test data will be questionable." Hall and Crowther noted penile plethysmography "may be even more problematic than other [methods] in assessing susceptibility of the test to faking." In
State of North Carolina v. Spencer, the court reviewed the literature and case law and concluded that penile plethysmography was scientifically unreliable: "Despite the sophistication of the current equipment technology, a question remains whether the information emitted is a valid and reliable means of assessing sexual preference." More recently, a substantial amount of research data has been gathered and reviewed, and significant steps have been taken toward standardization. According to researcher Gilles Launay, "[T]he validity of the technique for research and clinical assessment is now established;" it is only the use in guilt-determination proceedings that is inappropriate. Fedoroff and Moran called it an "experimental procedure" and noted, "Virtually every expert who has written about phallometry has cautioned that it is insufficiently sensitive or specific to be used to determine the guilt or innocence of a person accused of a sex crime."
Post-conviction use Phallometry is widely considered appropriate for treatment and supervision of convicted
sex offenders: "Courts have permitted plethysmographic testing for monitoring compliance by convicted sex offenders with the conditions of their community placement as part of crime-related treatment for sexual deviancy." Its use for the treatment and management of sexual offenders is recommended by the
Association for the Treatment of Sexual Abusers. Becker notes it "should never be used exclusively in forensic decision making." The
sexual assault trial of basketball player Kobe Bryant in
Colorado brought this device and its use to public attention before the case was dropped in 2004, because Colorado law would have required evaluation with this device following conviction. The
United States Court of Appeals for the Ninth Circuit recently addressed the procedures required before a
federal supervised release program could include penile plethysmograph testing. The device is routinely used at civil commitment facilities, but "some clinicians and offenders say it is easy, particularly in a laboratory, to stifle arousal and thus cheat on a plethysmograph test." This has been reported to occur in 16% of cases.
Canada Courts in
Canada came to a similar conclusion as those in the United States. The
Supreme Court of Canada adopted the
Daubert doctrine in
R. v . J.-L.J. [2000] 2 S.C.R. 600, which upheld a lower court's decision to exclude testimony by a psychiatrist who had administered several tests on the accused, including a penile plethysmograph: As of 2010, all youth in sex offender treatment programs administered by the Youth Forensic Psychiatric Service of
British Columbia were offered a voluntary penile plethysmograph test to predict whether they can properly control their deviant arousal, or whether they will require medication or other forms of treatment. According to sceptics, however, the test does not reliably predict recurrent violations.
Ethics and legality of use Robert Todd Carroll writes, "More objectionable than the questionable scientific validity of the device, however, are the moral and legal questions its use raises." Carroll and others cite the legality of the depictions of minors, as well as the constitutionality of requiring PPG for admission to jobs or the military, or in custody cases. In
Harrington v. Almy the
United States Court of Appeals for the First Circuit found that a PPG ordered to be administered by
William O'Donohue as a precondition of employment was a violation of plaintiff's rights under the
Fourteenth Amendment to the United States Constitution. In a 2009 report led by Robert Clift on use of the device on adolescent offenders, the authors acknowledge in their conclusions that PPG tests "are problematic ethically and should be used only after therapists have carefully weighed the benefits versus the negatives." The Minister of Children and Family Development closed the program examined in Clift's report in 2010 following complaints by civil rights groups. The principal manufacturer of the device stopped making them in the 1990s. The EU's leading human rights agency, the Fundamental Rights Agency, has criticised the use of phallometric tests by the Czech Republic to determine whether asylum seekers presenting themselves as homosexual were in fact gay. According to the Agency, the Czech Republic was in 2010 the only EU country to employ a sexual arousal test, which the Agency said could violate the
European Convention on Human Rights. In 2011 the
EU commission issued a statement calling the Czech practice illegal, saying "The practice of phallometric tests constitutes a strong interference with the person's private life and human dignity. This kind of degrading treatment should not be accepted in the European Union, nor elsewhere." The Czech Interior Ministry replied that the testing was conducted only after written consent has been obtained, and when it was not possible to use a different method of verification. According to the Ministry, all those who had passed the test had been granted asylum. ==See also==