When Sexual Addiction Leads to Sex Crimes

Kresta Nora Daly

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Criminal Defense Attorney

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Posted almost 2 years ago. 2 helpful votes

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When the internet first began to emerge in the 1990s it brought with it endless possibilities for progress and new development. Unfortunately it also brought with it equally endless possibilities for new crimes and new addictions.

Sexual and internet addiction is increasingly being recognized by therapists. Those addicted to viewing pornography often find themselves viewing increasingly hard core and/or taboo forms of pornography to get the same ‘high’ that they once received from fewer or less explicit images. Commentators have made analogies between sexual and pornography addiction to drug addiction.

According to psychiatrists and addiction experts such at Steven Luff, author of several books on the topic and leader of the X3LA sexual addiction recovery group in Los Angeles, sex and internet addiction is becoming a national epidemic.

That national epidemic has occurred at the same time there has been a nationwide spike in the number of child pornography prosecutions and the handing down of lengthy prison sentences. The spike in the number of cases, particularly in federal court, has brought about significant scrutiny of United States Sentencing Guideline section 2G2.2.

Courts, with increasing regularity, have found that §2G2.2 “…is ‘fundamentally different’ from other Guidelines and, unless it is ‘applied with great care, can lead to unreasonable sentences that are inconsistent with what §3553 requires.’" United States v. Grober, 624 F3d. 592, 607 (3d Cir. 2010). The Grober Court also stated: “As described in [the United States Sentencing] Commission’s 2009 Report, and as discussed by the Second Circuit in Dorvee, and, by now, numerous district courts, §2G2.2 was not developed pursuant to the Commission’s institutional role and based on empirical data and national experience, but instead was developed largely pursuant to congressional directives."

In fact, the amendments to §2G2.2 which are the subject of such harsh criticism by courts across the nation, were authored by two Justice Department officials who chose not to consult the United States Sentencing Commission. Debate on the amendment was limited to 20 minutes. Despite objections by the United States Sentencing Commission, the Chairman of the House Committee on the Judicary, the Judicial Conference of the United States, and the American Bar Association, the amendment, generally referred to at the Feeney Amendment, became law in April 2003.

Nationwide courts are so displeased with §2G2.2 that in 2009 43% of all federal child pornography sentences were below guidelines sentences, compared with 15.9% of sentences for all other federal offenses. (United States Sentencing Commission, 2009 Sourcebook of Federal Sentencing Statistics, Tables 28 & N, available at http://www.ussc.gov/ANNRPT/2009/SBTOC09.htm.) Among the most criticized parts of §2G2.2 is that fact that many of the specific offense characteristics, intended to enhance sentences for more culpable conduct apply in as many as 97% of child pornography cases.

Defense attorneys regularly argue that internet and/or pornography addiction are bases for downward variances in federal child pornography sentences. These arguments are not as readily accepted by courts as arguments attacking the logic of the federal sentencing guidelines.

More recently legal commentators have begun suggesting that sexual addiction and internet addiction should qualify as a disability under the Americans With Disabilities Act. A 2008 article in the Hofstra Labor and EmploymentLaw Journal concluded some individuals may have viable claims of internet addiction and be able to show that the addiction constitutes a substantial limitation. Bertagna, B., The Internet Disability or Distraction? An Analysis of Whether “Internet Addiction" Can Qualify As A Disability Under The Americans With Disability Act, 25 Hofstra Lab. & Emp. L.J. 419.

The Ninth Circuit has never addressed the question of whether the ADA applies in the criminal context, and if so, how. The weight of authority on the applicability of the ADA suggests decision-making in the criminal law context is not immune from the antidiscrimination guarantees of federal statutory law. Thompson v. Davis, 282 F.2d 780, 785 (2002 9th Cir), overruled on other grounds.

The dicta in Thompson suggests that in certain cases defendants who suffer from diagnosable addictions, including sexual addiction and pornography addiction, should be given some accommodation. The question of what form that accommodation should take remains open to significant speculation.

If you are charged with a sex crime and believe you suffer from sexual addiction please contact us to discuss your case.

Additional Resources

Barth Tozer and Daly, LLP

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