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Penile LIE DETECTOR Tests: Coming to a FAMILY COURT Near You?

Have you ever heard of "phallometric testing"? I confess I had not, until it was twice mentioned (apparently with approval) by Justice Benke in a recent and important decision that reversed a San Diego trial court's grant of visitation to a maternal grandfather (and grandmother) whose daughter was trampled by elephants while on safari, over vigorous objections of the children's father. Ian J. v. Peter M. (1/29/13) D060197 (Fourth Appellate District, Division One). I will discuss the case itself in a separate Blog.

According to on-line literature, phallometric testing provides "objective" information about male sexual arousal and interests, and can therefore be useful in helping to identify deviant sexual interests. I am constantly amazed at how our world is changing, and in particular how so-called objective testing mechanisms are being used to expose what is going on inside our brains and bodies. Justice Benke's decision suggests that we may be hearing more about phallometric testing in child custody related cases. Therefore I did some research on the subject.

Phallometric (PPG) testing employs a device called a penile plethysmograph (not a type of dinosaur), which measures changes in blood flow that affect the circumference of the penis in response to sexual and nonsexual stimuli. One of its uses is to differentiate or identify individuals who manifest high levels of arousal to inappropriate sexual activity, while displaying low levels of arousal to appropriate sexual activity (presumably, perverts are bored by what excites normal men). Final assessment recommendations are based upon ratios between appropriate and inappropriate responses.

Normally, the man being tested in placed in one room and an operator is placed in another, but they are able to communicate. The subject is instructed how to place the measuring gage on his penis, and some initial calibration is performed to achieve a "baseline." It is sensitive enough that the subject may not be able to discern penile circumference changes that nonetheless register on the machine. The subject is presented with erotic materials in the form of audio or visual stimuli. Video stimuli introduces a greater possibility of error, not to mention ethical problems, since apparently this medium is quite powerful and tends to produce the highest arousal rates in viewers.

Also, we all have heard that some people respond more strongly to visual cues than audio, particularly in studies of memory but also in the art of persuasion. Accordingly, audio stimuli is viewed as being more reliable and less problematic. Still, photographs of nude persons of different ages and genders may be displayed for response measurement. Some jurisdictions have amended their penal codes to provide that possession of the standardized stimulus materials does not constitute pornography. With regard to minors, nude photographs may be used, but not of children in sexual acts. Instead, photographs have been obtained from "nudists" of their children, taken with their parents present and with their consent. At least in the United States, using confiscated materials obtained through the exploitation of children or adults has been discouraged for over two decades.

A subject is exposed to stimuli depicting as many as twelve different sexually stimulating fantasies. These sets of sexual situations might cover a full range of child, adolescent, and adult targets for both genders. The penile circumference is recorded on a graph, and these are then used to determine whether the subject is "overly stimulated" to an inappropriate fantasy as compared with an "appropriate" fantasy.

The plethysmograph's validity for measuring sexual arousal is considered by some researchers to be very high. It is considered to reliably indicate age preferences and sexual orientation. Research has shown that child molesters can be detected using the device and "proper stimuli," and that it may predict the future commission of new sexual crimes.

The procedure remains, as one would hope, highly controversial. For instance, in the Czech Republic phallometric testing has been used to verify whether individuals seeking asylum on the basis of sexual orientation are in fact homosexual. The testing is apparently voluntary, but a refusal to allow it may result in a denial of asylum. The test was first developed in Czechoslovakia some 60 years ago, and originally it was used to identify draft dodgers pretending to be gay (and to keep gays out of the military). It was well-received by American therapists and behaviorists, who at that time were attempting to find ways using aversion therapies to transform homosexuals into "straight" men.

A truly scary aspect of this kind of testing is that some 76 countries in the world criminalize same-sex relations, and 8 apply the death penalty. Iraq and Iran two of the worst offenders. Could test results lead to a death sentence?

In the United States, it is commonly used by hospitals, treatment centers for sexual offenders, and prisons and "correctional" facilities. In Utah the testing is a standard intake procedure, to establish a baseline of what must later be overcome before sex offender treatment can be terminated. Clearly it is here to stay, and its use may be spreading.

Might it be used to exculpate a man, whether he be a father or grandfather, from allegations that he is a pervert? Could refusal to submit to such an examination raise an inference of guilty thoughts and sexual deviancy, and so form a basis for a court to deny custody or severely restrict visitation?

Justice Benke felt it important to mention in the procedural history of the case that

"[a]lthough suggested by an expert retained by appellant, the court appointed evaluator did not perform any phallometry, which measures penile response to various stimuli. Notwithstanding ... ambiguous psychosexual test results, based on interviews with other members of the family and the grandfather, the evaluator concluded the grandfather did not pose a substantial risk to his granddaughters.

Given this record, appellant's concerns about permitting the grandfather to have unsupervised visits with his daughters are legitimate. The girls' discomfort in the presence of their grandfather alone supports a parent's vigorous intervention on their behalf. Thus, the family court's order, which requires extended unsupervised visitation with the maternal grandfather, must be reversed."

The appellate court's reference to phallometry implies, for me at least, that such testing might have been deemed relevant to establishing whether grandfather visitation posed a risk to the granddaughters, or not. The decision did not turn on objective proof as much as on a reasonable concern by the father (and the presumptions established by the U.S. Supreme Court in Troxel v. Granville (2000) 530 U.S. 57), and the expressed preferences of the minors involved.

Comments like these in reported decisions constitute clues as to how trial courts should rule on such matters, and family law trial attorneys and self-represented parties may want to consider asking the court to order this form of testing by appropriately trained mental health professionals when molestation or a history of sexual abuse of children is alleged.

Anyway, now we are all better informed!

~ Thurman W. Arnold, III, CFLS ~

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