Security Clearance Denied for Past Child Porn Downloading; Hearing Officer Unmoved by Claims That Behavior Stemmed from Since-Resolved Gender Dysphoria

"Applicant believed she was pre-adolescent or during adolescence when she was downloading images of children on her computer in 2013 to 2014 even though she was chronologically about 30 years old."

From a very long security clearance opinion released Jan. 30 by the Defense Office of Hearings and Appeals (DOHA), but just posted on Westlaw (note that the guidelines having to do with denying security clearances based on sexual behavior list as a mitigating factor that "the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature"):

Applicant is a 42-year-old senior principle cyber software engineer systems administrator who has worked for the same defense contractor for about nine years…. She has three children between the ages of 10 and 15 and maintains a friendly relationship with her ex-spouse since their amicable divorce in 2022….

An important element is Applicant's life is her history of gender dysphoria. She said:

My gender dysphoria is something that I feel like I always struggled with, it's something that I can trace back even into adolescence, and pre-adolescence, an overall incongruity with my sense of self. But it's not something that I ever really had words for prior to about 2015, [which] is when I really started looking into it. And in 2016 I was working with a therapist, and that's when I kind of had a breakthrough, and recognized that I was transgender, and that a lot of what I was dealing with was gender dysphoria, the notion that my sense of [whom] I was disconnected from the body, and the way that I was perceived by society around me. I'm not sure how much deeper we necessarily want to get into that. But I did pursue further treatment, including both psychological therapy, medicine, and eventually surgeries.

[The government] alleges under the sexual behavior guideline that Applicant downloaded and viewed thousands of pornographic images of children from about 2013 to at least about 2014 while working for DOD at a base outside the United States. [The government] alleges under the sexual behavior guideline that she was investigated for these actions and warrants were issued for her electronic devices. She left the job before the investigation could conclude…. [There appears to be no discussion of any criminal prosecution. -EV]

Applicant said her interest in the pictures she downloaded was "an aesthetic interest, [she] pursued as [she was] attempting to resolve [her] gender status as opposed to a prurient interest." She explained why she utilized the dark web as follows:

[I]t was mostly just for the ability to find a large collection of images that could be downloaded without attendance that I could go through later to find things that I found soothing. I wasn't specifically looking for illicit images, whether prurient or otherwise. There was some intent to bypass purchasing things that were for sale, that is just the facts of it. I was not trying to per se hide my identity through going there, it wasn't the need for anonymity in that sense. But just not having to engage in a person to person kind of way.

A criminal investigation began when local base security received a tip from the base Internet service provider that Applicant's Internet protocol (IP) had been flagged as accessing certain marked resources or servers. The investigators interviewed Applicant in February of 2016, and she said she was "not attracted to minors." …

Her February 2016 DOD investigative summary of interview states:

When the Reporting Agent asked if she had pornography on her computer, [Applicant] stated she did. When asked if she had illegal pornography on her computer, [Applicant] stated she did not. The Reporting Agent asked how many images of children between the ages of nine to 12 [Applicant] had on her computer, she stated over 100, less than 200 images, and she did not believe it was child pornography. she described the images as erotica and deemed them separate from pornography….

The Reporting Agent asked [Applicant] if she has been constantly downloading images from [an application] for approximately one year, how it is possible she only had less than 200 images of children between the ages of nine and 12. She was unable to provide an explanation. Later in the interview, it was explained to her the [DOD] found 40,000 pornographic images on her computer, 30,000 of them are of females between the ages of nine to 12, wearing tight clothing, usually a leotard, sitting with their genitals facing the camera, and in most instances, one can see the outline of their genitals. [Applicant] stated that was a possibility but she did not know how many images she had because she did not view all of them. She only viewed some of them and deleted the images that were "disturbing," meaning "naked kids." When asked why she stated she had less than 200 images earlier in the interview and is now stating it could be as many as 30,000, she stated she never said that and was not asked that question by the Reporting Agent.

At the hearing, Applicant disagreed with the use of the term, "erotica" in the investigative summary for the images of children because the children were wearing clothing. She conceded children dressed erotically would still violate local national law at the overseas location where the images were possessed.

Applicant believed she was pre-adolescent or during adolescence when she was downloading images of children on her computer in 2013 to 2014 even though she was chronologically about 30 years old. She explained she was biologically or physically an adolescent in 2016, which was three or four years after she downloaded child pornography. She said:

So, I think that I can pretty confidently say that yes, this happened prior to adolescence as I experienced it. I think it gets to be kind of complicated, I think you kind of indicate that there is a social aspect to adolescence …. [[It] is also important to recognize the biological and chemical aspect of adolescence …. I was taking estrogen for the first time, my body was receiving it in very much the same way that cis gendered women receive their estrogen when they first start puberty at 9, 10, 11, however old it is. And so in a very real sense I went through feminine puberty over the last eight years …. [T]here has been a lot of development biologically, and psychologically through that process of receiving estrogen, and processing it, and everything that comes naturally, biologically through that …. [Blood tests showed her testosterone levels were very low and] I'm not confident that you could say that I had completed even male adolescence in the same way that cis men would have completed it …. I think that this happened during or prior to, depending on how you want to look at it, my adolescence….

Applicant believed her conduct downloading sexual images of children was not a crime. She denied that she engaged in sexual behavior because "for me, it was purely aesthetic, purely being able to project my sense of self onto an image that felt like me." She explained:

So … the long and short of it is that from my perspective it was never a sexual pursuit. I was experiencing intense gender dysphoria that as I noted, I didn't really have any way of understanding, or conceptualizing. I knew that I was under a lot of distress. And what's more is that I, being overseas the way that we were, was separated from any kind of support system that I had managed to build up over the years to subconsciously alleviate that distress. I was away from all of my friends, and family, and anyone who helped mediate that feeling for me. I ended up finding modeling sites where there were images of young women and young girls.

And most of the images on those sites were very tame, girls in dresses sort of thing. And those I found to be very soothing, they were something that I was able to project myself onto, and be like that is who I want to be, that is the image that matches myself, my sense of self. And so I started looking into ways of finding more images like that to help alleviate that distress that I was feeling …. And so I went to peer to peer software, where I could basically queue up large swathes of files that would be downloaded, and then I would go in after the fact, and pick through them, and see if anything matched what I needed.

And so a big piece of it is I was never looking for any illicit images, I wasn't looking for anything sexual. And the images that I was looking for, I don't believe cross into that line of illicit photographs, child sexual abuse, that sort of thing. And so, none of my intent matched what I believed would have been criminal.

Applicant conceded her conduct was "probably imprudent;" however, she did not believe that "it harmed anyone, in that any harm that would have gone into making any of these images had already been committed before I accessed anything."

Applicant denied that she has had any interest in sexual images of children for several years. She denied any sexual activities as an adult with anyone under 18 years of age. She continues to view pornography from the Internet. Her change in interests was achieved through psychological therapy and counseling and the support of her family. She has been "receiving therapy for anxiety and depression" since 2013. After she recognized herself "as transgender, a lot of that depression resolved itself very quickly." Her current "level of dysphoria … is basically zero." She said her "drive to seek out even that aesthetic kind of relief is not something that I have had any inclination towards in years." She has publicly disclosed her transgender identity, and she could not be pressured or coerced over this issue. Her therapy records and character statements indicate she follows rules.

Applicant would not make the same choices she did in the past, and she does not believe she will make judgment errors in the future because she has the support of the trans community. Her current circumstances are different from the 2013 to 2014 time period. She said:

[The conduct at issue] occurred at a specific time and place, both geographically and chronologically, under a set of circumstances, specifically a measure of distress that is no longer part of my life. I have a very good support network with my friends and family, I am living authentically as myself. I don't have any of that gender dysphoria anymore, and so it is something that I feel like you could say that because of the distress that I was under it was a lapse in judgment, it was a poor choice, and that is true in the past. I think that today none of those considerations are relevant anymore. I'm no longer that person, and I'm no longer under that level of distress.

In sum, for about one year, Applicant continuously downloaded pornographic images from the Internet to her personal desktop computer or electronic devices. She downloaded batches of files from the dark web, and then later she reviewed or curated the files that were downloaded. The pictures and videos were downloaded during the workday and on weekends. Due to the size of the files and the capacity of the servers, it might take days or weeks for the items to download. The DOD investigation concluded that "approximately 5000 files of known child pornography or child sexual abuse material were found," on Applicant's electronic devices in 2014. She admitted she had a compulsion to download the images in 2013 and 2014. She denied that she knew at the time she was viewing the images that she understood that what she was doing was illegal. Some of the pictures she viewed were nude children or children engaged in sexual activities, and she said she deleted those pictures after viewing them. The deleted pictures and videos went into her computer's recycle bin. She conceded that during the time she was viewing the pictures, she was in possession of the pictures, and she engaged in possession of child pornography….

The officer concluded that the applicant shouldn't be reissued a security clearance, because of the downloading of the sexual material and lack of candor in the investigation. A few brief excerpts:

A DOD investigative agency found about 30,000 images of children dressed in a manner showing the shape of their genitals under their clothing or otherwise displaying the genital area of their bodies under clothing. These images may constitute child pornography under 18 U.S.C. § 2252A(a)(2)(B). The court in United States v. Knox (3d Cir. 1994) said:

A visual depiction of a child, whether the child is clothed or naked, must be lascivious to be proscribed. Whether a depiction is lascivious is essentially a subjective inquiry into whether or not the material is intended to elicit a sexual response from the viewer. Only a minuscule fraction of all pictures of minor children will be sufficiently sexually suggestive and unnaturally focused on the genitalia to qualify as lascivious. Even fewer images where a minor's genital area is not fully exposed will constitute a lascivious exhibition since the fact that a child's genital area is covered is a factor militating against a finding of lasciviousness. Thus, including scantily clothed displays of the genitals within the meaning of an exhibition leaves the statute directed at the hard core of child pornography, which results in leaving an indelible psychological scar on the exploited child. Our interpretation simply declines to create an absolute immunity for pornographers who pander to pedophiles by using as their subject's children whose genital areas are barely covered.

The DOD investigators determined Applicant had about 5,000 images of child pornography on her electronic devices…. There is substantial evidence that from 2013 to 2014, Applicant possessed and viewed thousands of pornographic images of children while working for DOD at a base outside the United States….

None of the mitigating conditions fully apply. Applicant did not take full responsibility for her possession of thousands of images of child pornography. She did not admit that she engaged in a series of criminal offenses over one year period as she collected and possessed images of child pornography. She minimized her conduct. "[R]ehabilitation and reform is difficult to establish if an applicant refuses to accept responsibility for her actions." Applicant's possession of child pornography was in 2013 to 2014, which is not recent; however, "[w]hatever mitigating value attaches to the passage of time since the conduct, it is seriously diminished by Applicant's failure to acknowledge the misconduct." Applicant's history of minimization and some outright denials of criminal culpability raise obvious questions about her honesty throughout the security clearance process. Her false statements damage her credibility, integrity, and reliability….