No Security Clearance for Employee Who Had Admitted to Downloading Child Pornography

Source: The Department of Defense Defense Office of Hearings and Appeals. Case No. 22-097777 (released Nov. 1, but only posted this week by Westlaw)

2013 Applicant was a part of several interview sessions that were polygraph assisted. Applicant revealed that he started downloading and storing child pornography to his computer every other week in the middle of 2011. He saw videos of females aged 8-17 years old, masturbating and exposing their genitals. During these sessions, he masturbated. Also, he reported that he was contemplating giving Russia or Ukraine enough classified data in return for the harem of small girls. It was never implemented by him.

Applicant stated that he was able to see child pornography since October 2012, after having discussed his actions with his wife. He also promised her that he wouldn’t continue. His wife made sure that he could not search for child pornography on his computer at home. He admitted at his hearing that he had been able to bypass the passwords and access the computers. In 2009, he attributed his pornography-watching habits in child porn to the passing of a female friend.

Applicant identified himself as a polygraph-assisted interviewee in May 2014. He said that he’s a pedophile, because he has a sexual desire for underage girls. According to Applicant, he never realized his fantasies. Applicant read several erotic books that featured underage girls engaging in sexual acts alongside adults between March 2013 and March 2014. These stories made Applicant’s sexual impulses more intense, and he said he gave up reading them in March 2014. He said that he used to masturbate once per month for the purpose of considering engaging in sexual acts, especially with females underage. Interviewers told him that he was strong enough to prevent him viewing child pornography if he had one.

Applicant attended counseling sessions with his own counselor and an Agency counsellor after the interview. Following a psychological examination, Applicant was diagnosed with Pedophilic disorder by the Agency therapist. The Agency therapist advised Applicant to continue with his work, despite the diagnosis. Applicant admitted that he searched for and downloaded child pornography from June 2014 to June 2015 during a follow-up interview. Applicant used his phone’s camera to look for child pornography. The Agency terminated his eligibility for SCI after the interview.

Applicant appealed to Agency for a decision. He had a psychological assessment performed in December 2015 by Dr. C. (a licensed psychologist). Applicant was found to have: 1) Pedophilic disorder, nonexclusive type, sexually attracted to females (so that the attraction to young women will always be there); 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:

If sexual behavior involves a crime, it reflects an inability to judge or make decisions; and may expose the person to coercion, exploitation or duress. All these questions, or some of them, can raise doubts about an individual’s ability, judgment, reliability and trustworthiness to guard classified or sensitive information. Sexual conduct can take place in person as well as via electronic, written or audio transmissions. This Guideline does not allow for any adverse inferences to be made solely on account of the person’s sexual orientation.

Applicant was diagnosed as having Pedophilic Disorder. Between 2011 and 2017, he has viewed and downloaded child pornography several times. He is ashamed of his child pornography-related sexual preferences and doesn’t want others to discover them. He was aware that child pornography is illegal but he continued to possess it.

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; ….

The applicant viewed child pornography numerous times, including at least once in 2011, 2011 and 2017. Records evidence prove that applicant was displaying sexual acts of criminal character. 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 perpetrator’s sexual activity occurred long ago or infrequently under so unusual circumstances it is highly unlikely that it will recur. This does not affect the person’s ability to trustworthiness, reliability or judgement.
(c) The behavior is no longer used as a base for coercion or exploitation;
(d), the sexual behaviour is discreet and consensual;
(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. Based on the submitted evidence, it is unclear whether Applicant will cease possessing child pornography. It is probable that Applicant will recur with his previous criminal sexual behaviour. This casts doubt upon Applicant’s credibility, trustworthiness, 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. His viewing of the photos of the children involved in sexual conduct is not permissible. 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.

However, the decision wasn’t based on Applicant’s current reading of “erotic textsual stories involving kids”:

It was not established by the government that this behavior constitutes a federal or state criminal offense. The First Amendment prohibits the government, as a rule, from controlling what we read and speak. Freedom of speech does have its limits. It doesn’t include certain speech categories, such as incitement and defamation. Ashcroft v. Free Speech Coalition (2002). This allegation is made for applicant.