South Carolina's highest court ruled that a controversial arousal test was too unreliable to be used as evidence to keep a predator behind bars.
The unanimous ruling by the South Carolina Supreme Court, issued last month, centered on a s*x offender named Andy Hyman.
After pleading guilty to second-degree criminal s*xual conduct involving a minor in 1997, Hyman served a short prison sentence and completed several years of supervised release in 2003.
Highlights
- The South Carolina Supreme Court ruled against the use of a scientifically dubious test as evidence against predators.
- The test, PPG, has been described by a judge as “polarizing” within the scientific community.
- The case centered on whether Andy Hyman should be detained indefinitely after pleading guilty twice to crimes against minors.
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Trigger warning: This article contains references to crimes against minors which some readers may find distressing.
Thirteen years later, Hyman pleaded guilty to the same crime, this time in the third degree, resulting in a 10-year prison sentence, Reason reported.
Before he completed that sentence, the state sought to continue detaining him as a s*xually violent predator (SVP).
Under South Carolina law, predators can be detained indefinitely if they are found to have a "mental abnormality or personality disorder” that makes them likely to commit future s*xual offenses if released.
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Marie Gehle, chief psychologist at the South Carolina Office of Mental Health (OMH), concluded that Hyman did not meet the legal definition of SVP.
Instead, she diagnosed him with p*dophilic disorder after conducting a series of standardized tests that indicated he was not likely to reoffend.
However, unsatisfied with that conclusion, the state asked Emily Gottfried, director of the S*xual Behavior Clinic and Lab at the Medical University of South Carolina (MUSC), to conduct another evaluation. Gottfried reached the opposite conclusion after using a scientifically controversial test known as penile plethysmography (PPG).
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The test attempts to measure arousal by tracking small changes in penile circumference while subjects are exposed to different stimuli, including images, audio recordings, and text.
Based on the results, she concluded that Hyman posed "a heightened risk of reoffending,” noting that the findings "clearly indicate[d]" that he had a "current s*xual interest in children."
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During the trial, Gottfried reportedly described PPG as "an objective physiological measure of male s*xual arousal," "the gold standard" for assessing that response, and a "strong predictor or risk factor” for recidivism.
In contrast, Gehle said the test is unreliable and explained that this is why the OMH does not use it.
The jury deliberated for 22 minutes before agreeing with Gottfried about the PPG test’s ability to predict that Hyman was likely to commit another crime.
Hyman then appealed to the South Carolina Supreme Court.
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The Supreme Court unanimously ruled that the PPG evidence should not have been admitted in court because the test is too unreliable to qualify as scientific evidence.
The judges pointed to several problems with PPG, including the fact that different laboratories use different testing methods, there is no standardized way to conduct the test, and results can vary when the same person is tested more than once.
Chief Justice John Kittredge said the technique is “generally inadmissible in judicial proceedings" because it suffers from a "glaring lack of standardization."
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"Some experts have focused on the high rate…of false positives and false negatives associated with men's ability to willfully suppress or display arousal," Kittredge wrote.
He added that the scientific community is “polarized” regarding the validity of PPG as a tool for assessing s*xual deviancy, but noted that “even the experts who believe the PPG to be a valuable tool in pre-commitment evaluations acknowledge the test is not standardized."
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Referring to the different results produced by initial and subsequent tests on the same person, the judge said PPG cannot account “for a host of variables that affect erectile responses."
Those include "the recency of an offender's last org*sm," "his level of intoxication or fatigue," "his cardiovascular health," "his current medications," his age, and the gender of the person administering the test, among other variables.
The South Carolina Supreme Court joined a long list of state and federal courts that have deemed PPG tests unreliable scientific evidence.
The ruling does not eliminate South Carolina's law allowing indefinite detention of certain predators after they complete their sentences. Instead, it limits the evidence prosecutors can use to justify detaining someone under that law.
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In 2021, the South Carolina Supreme Court unanimously ruled that the state's requirement that all predators remain on the public s*x offender registry for life is unconstitutional.
The ruling allows people who demonstrate a low risk of reoffending to petition a judge to have their names removed from the registry.
The high court said the previous system, which it described as the “most stringent in the country,” violated offenders' due process rights because it gave them no opportunity to prove they were no longer a danger to society.
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The ruling, which took effect in 2022 and mirrors systems used in other states, mandates that offenders be given hearings in circuit court, where they may argue they no longer pose a risk to their communities.
The decision sparked mixed reactions. While critics argued that it focused too much on criminals and failed to consider victims’ trauma, supporters said some offenders, especially those who committed less serious crimes, should have a chance to prove they are no longer dangerous.
