The Volokh Conspiracy
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From the Department of Defense's Defense Office of Hearings and Appeals (Case No. 20-00977, released Nov. 1 but just posted this week on Westlaw, 2021 WL 6112927):
In 2013, Applicant participated in several polygraph assisted interviews. He disclosed that in mid-2011, he began downloading, storing, and viewing child pornography on his personal computer once every two weeks. He viewed videos depicting females ranging from 8 to 17 years of age exposing their genitals, masturbating, and having sexual contact with each other and adults. He masturbated during these sessions. He also reported that in 2012, he had thought about amassing enough classified information to give to Russia or the Ukraine in exchange for a harem of little girls. He denied ever acting on it.
Applicant claimed that he stopped viewing child pornography in about October 2012 after discussing his behavior in detail with his wife and promising her that he would stop. He had his wife set the passwords of his home computer to prevent him from searching for child pornography. At his hearing, he admitted that he was able to go around the passwords and use the computers. He attributed his child pornography viewing habits to the death of a close female friend in 2009.
During a May 2014 polygraph assisted interview, Applicant described himself as a pedophile because he is sexually attracted to underage girls. He claimed he has never acted on his desires. Between the spring of 2013 and March 2014, Applicant read erotic stories featuring underage females engaging in sexual acts with adults. He claimed he stopped reading these stories in March 2014, because they made his sexual urges stronger. He stated that he was masturbating once per month to the thought of engaging in sexual acts with underage females. He told his interviewers that having and maintaining a clearance was a strong deterrent to keep him from viewing child pornography.
After the interview, Applicant participated in counseling with his own therapist and an Agency therapist. After a psychological evaluation, the Agency therapist diagnosed Applicant with Pedophilic Disorder. Notwithstanding this diagnosis, the Agency therapist recommended Applicant continue his work. During a following interview in August 2015, Applicant disclosed that he had searched for, downloaded, stored on his computer, and viewed child pornography on six to seven occasions from one month after his Agency's psychological evaluation in June 2014, to most recently in June 2015. He also used his cell phone to search for child pornography. After the interview, the Agency suspended his clearance and SCI eligibility.
Applicant's appeal to the Agency's decision included a psychological evaluation in December 2015, performed by his treating psychologist, Dr. C, a licensed psychologist. He was diagnosed with: 1) Pedophilic Disorder, Nonexclusive Type, Sexually Attracted to Females (so the attraction to underage females will always be present); 2) Bipolar Disorder, Most Recent Episode Depressed, Mild; and 3) Alcohol Dependence in Sustained Full Remission. Based on the evaluation report, it appears that the psychologist believed that Applicant had only sought and viewed child pornography between 2011 and 2012, with a one-time relapse in 2015….
AG [Adjudicative Guidelines] ¶ 12 sets forth the security concern as follows:
Sexual behavior that involves a criminal offense; reflects a lack of judgment or discretion; or may subject the individual to undue influence of coercion, exploitation, or duress. These issues, together or individually, may raise questions about an individual's judgment, reliability, trustworthiness, and ability to protect classified or sensitive information. Sexual behavior includes conduct occurring in person or via audio, visual, electronic, or written transmission. No adverse inference concerning the standards in this Guideline may be raised solely on the basis of the sexual orientation of the individual.
Applicant was diagnosed with Pedophilic Disorder. He has deliberately searched for, downloaded, stored on his computers, and viewed child pornography multiple times between 2011 and at least 2017. He feels shame and anxiety associated with his child pornography sexual predilections and he does not want his sexual behavior to be discovered by others. He knew possession of child pornography was wrong, and he did it anyway.
AG ¶ 13 provides conditions that could raise a security concern and may be disqualifying:
(a) sexual behavior of a criminal nature; whether or not the individual has been prosecuted; …
(c) sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress; ….
Applicant deliberately viewed and possessed child pornography many times between 2011 and until at least 2017. The sexual behavior of a criminal nature is established by the record evidence. He engaged in a pattern of compulsive, self-destructive, or high-risk sexual behavior that he was unable to stop, and it causes him to be vulnerable to coercion, exploitation, or duress….
AG ¶ 14 provides the following possible mitigating conditions: …
(b) the sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or judgment;
(c) the behavior no longer serves as a basis for coercion, exploitation, or duress;
(d) the sexual behavior is strictly private, consensual, and discreet; and
(e) the individual has successfully completed an appropriate program of treatment, or is currently enrolled in one, has demonstrated ongoing and consistent compliance with the treatment plan, and/or has received a favorable prognosis from a qualified mental health professional indicating the behavior is readily controllable with treatment….
AG ¶ 14(b) is not applicable because Applicant's sexual behavior of concern is recent and it occurred frequently. It is not clear from the evidence submitted whether Applicant will refrain from possessing child pornography in the future. I find that his criminal sexual behavior is likely to recur, and it does cast doubt on Applicant's current reliability, trustworthiness, or judgment. AG ¶ 14(c) is not applicable because Applicant's sexual behavior continues to be a basis for coercion, exploitation, or duress. AG ¶ 14(d) is not applicable. The children he viewed engaging in sexual behavior are too young to consent to his viewing of their pictures. Moreover, many of the children were likely coerced into engaging in the sexual conduct…. AG ¶ 14(e) is applicable, but does not mitigate the security concerns.
The decision was not, however, based on the Applicant's current reading of "erotic textual stories involving children":
The Government failed to establish that such behavior is a criminal offense under Federal or state law. As a general principle, the First Amendment bars the government from dictating what we see, read, or speak. Although freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children." Ashcroft v. Free Speech Coalition (2002). I find this allegation for Applicant.