Supervision for Convicted Sex Offenders

Facts of the Case

In December 2005, Joseph Stoterau, then 26, met J.D. at a gay and lesbian support group. J.D. was 14 at the time. In July 2006, Mr. Stoterau introduced J.D. to rentboy.com, a website that advertises gay male escorts. Mr. Stoterau then persuaded J.D. to pose for nude photographs, with the understanding that they would be uploaded to the website “to make some money.” Mr. Stoterau posted J.D.'s photographs along with his mobile phone number and acted as an intermediary between the young man and potential clients. The record indicates that Mr. Stoterau drove J.D. to his sexual encounters, gave him alcohol, and paid him a portion of the $250 he charged, while keeping the rest for himself.

On August 4, 2006, officers from Immigration and Customs Enforcement executed a search warrant on Mr. Stoterau's residence and seized his personal computer. While examining the computer's hard drive, officials discovered images of child pornography. On October 30, 2006, in the United States District Court for the Central District of California, Mr. Stoterau pleaded guilty to one count of transporting child pornography. He was sentenced to 151 months in prison followed by five years of supervised release.

As part of the conditions of supervised release, Mr. Stoterau would be subject to AASI-2 and polygraph tests. In addition, the court mandated that Mr. Stoterau would not have access to internet pornography, would have restricted communications with minors, could not utilize commercial mail services (such as a post office box), would not have employment activity with businesses that had regular contact with minors, and would bear financial responsibility for his psychiatric treatment during supervised release. Mr. Stoterau appealed the decision to the U.S. Ninth Circuit Court of Appeals, arguing, among several other claims, that the district court's mandated terms for his supervised release were an abuse of discretion. Mr. Stoterau specifically challenged the provision mandating Abel testing by arguing that the court infringed on his right to due process because it had not articulated the reason for imposing the test. Furthermore, Mr. Stoterau argued that the test was too unreliable to be reasonably related to the goals of supervised release.

Ruling and Reasoning

The U.S. Ninth Circuit Court of Appeals decided that the district court did not abuse its discretion since the conditions of Mr. Stoterau's supervised release were reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender, and involved no greater deprivation of liberty than was necessary for the purpose of supervised release. The court stated that the Due Process Clause does not require a circuit court to specify its reason for mandating a term of supervised release, unless a significant liberty interest was at stake.

The court ruled that unlike PPG, chemical castration, or compelled antipsychotic medication treatment, Abel testing was a minimally invasive procedure and did not impede significant liberty interests, as it did not involve significant manipulations or intrusions. Furthermore, the court opined that Abel testing did not impose a significant burden on the subject, as it only required showing a series of slides and monitoring the amount of time the subject's focus was on each slide. Therefore, a trial court is not required to express a distinct rationale in mandating Abel testing for individuals under supervised release. Moreover, the court reasoned that as protecting children from sexual abuse is a legitimate state interest, use of Abel testing is reasonably related to the goals of supervised release.

Discussion

In the case of United States v. Stoterau, the Ninth Circuit Court of Appeals clarified the scope of its previous ruling in United States v. Weber, 451 F.3d 552 (9th Cir. 2006). In that case, the court ruled that PPG testing of sex offenders under supervised release is an undue deprivation of a significant liberty interest, when less intrusive means of testing were available. In Stoterau, the court reaffirmed its previous ruling in Weber, proscribing unwanted intrusions and manipulations of individuals subject to supervised release. However, the court found that, unlike PPG testing, Abel testing is nonintrusive. In addition, the court concluded that despite concerns about the reliability of Abel test results, there is enough evidence to support the use of the AASI-2 in assessing an individual's sexual interest in children, which is reasonably related to the state interest of public safety.

The Ninth Circuit Court of Appeals’ ruling that the AASI-2 does not significantly affect an individual's interest in avoiding unwanted bodily intrusions and manipulations has an additional consequence: courts can mandate Abel testing in supervised release settings without having to provide a rationale. This distinction further differentiates Abel testing from PPG and is likely to result in an increased use of the instrument as a condition of parole and probation for individuals charged with sex offenses.