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Abel was I ere I saw Leba

By "Milbarge" and "Fitz-Hume"

Prof. Berman had this post last week noting a Ninth Circuit opinion dealing with some sentencing aspects of a dirty pictures case. There were a few things I found interesting.

First, one of the defendant's conditions of supervised release was that he undergo Abel testing. As the opinion describes it, Abel testing involves showing the subject pictures and asking the subject to rate how arousing they are. The subject is supposed to think the test is actually seeking his numerical grades, when in fact it measures how long the subject stares at the pictures.

I don't think I'm letting the cat out of the bag here. A quick googling turns up lots of discussion on how to "beat" the Abel test. And there's this this New York Times Magazine piece about sex offenders that also revealed the twist. And, let me repeat, the big secret behind the test is right there in the opinion, handily set off as a block quote on page 20 of the pdf. No wonder the opinions notes the test's error rate ranges "from poor to appalling." (The Times Magazine article says "the Abel Assessment is widely considered a strong diagnostic tool.")

This all reminds me of the Seinfeld episode where George coaches Jerry on how to beat a lie detector test: "It's not a lie...if you believe it."

I guess there's not much use to challenging this test as a condition of one's supervision if the opinion affirming it tells you how to get around it. Maybe the court thinks the defendant won't read it. Still, it does seem to undermine the efficacy of the test (assuming it's effective on a subject who doesn't know how it works). Maybe that was the idea, in which case I guess there's not a lot of harm in approving it as a condition of treatment. Then again, the guy got a 12+ years sentence, so maybe by the time he is actually out on supervised release, they will have figured out whether the test really works or not.

Second, the defendant in this case used to be involved with the troupe Up With People. I'm not saying there's anything necessarily wrong with that...but it did jump out at me.

Finally, you know you're not going to win on a claim the court describes this way: "Stoterau's appeal raises the following five general issues, which we discuss in turn: ...(5) whether this disposition should be filed under seal or alternatively, whether we should identify Stoterau by a pseudonym in place of his true name."

Full post as published by Begging the Question on May 04, 2008 (boomark / email).