Sexual Addiction as a Legal Defense

U.S. v. Tanasi

In U.S. v. Tanasi,⁴² Stephen Tanasi was arrested for sending images of child pornography to an undercover officer. During the police interview, Mr. Tanasi admitted to trading hundreds of additional pornographic pictures of underage girls.

Because of the nature of the offense, Mr. Tanasi was referred for a psychosexual evaluation by William F. Hobson, M.S, a clinical member of the Connecticut Association for Treatment of Sexual Offenders. Hobson evaluated Mr. Tanasi and opined that although he was in possession of child pornography, there was no evidence that he had abused a child. Hobson recommended that Mr. Tanasi be administered an Abel Screen test to determine the intent of his sexual interest in children.

The defense hired clinical psychologist Leslie Lothstein, PhD, who evaluated Mr. Tanasi and administered the Abel and Becker Cognition Scale.⁴³ This scale includes 26 items related to children’s attraction to adults and the harmlessness of sexual activity between a child and an adult. They are scored on a 5-point Likert scale ranging from 1 (completely disagree) to 5 (completely agree). The total score ranges from 26 to 130. The lower the score the more likely the participant harbors cognitive distortions related to sexual activities with children. The results of the test were within normal limits, with Mr. Tanasi not ascribing to any items suggesting he had an interest in engaging in adult–child sex. Lothstein stated that there was no evidence that Mr. Tanasi was a predator. He concluded that Mr. Tanasi’s action of collecting thousands of images of adult pornography was secondary to a compulsive and sexual addiction to pornography.

The U.S. District Court for the Southern District of New York ruled that Mr. Tanasi had a diminished capacity because of his addiction to pornography and granted a downward departure from sentencing guidelines. Mr. Tanasi was sentenced to nine months in federal custody, followed by three years of supervised release, and a special assessment fee.

U.S. v. Cernik

In U.S. v. Cernik,⁴⁴ Christopher Cernik was arrested after he met with an undercover detective who was posing as a 13-year-old girl through an online chat website. Mr. Cernik was charged with one count of coercion and enticement of a minor.

The defense provided a forensic psychological evaluation by Steven Miller, PhD. Miller opined that Mr. Cernik suffered from a “sexual addiction type of sexual disorder” and noted many behaviors that were linked to sexual addiction, including “thinking sex is love, cognitive distortions of human sexuality, periods of loneliness, compulsive masturbation, and frequent viewing of pornography” (Ref. 44, p 7). Miller diagnosed Mr. Cernik with bipolar II disorder and “moderately severe Sexual Addiction Disorder” and stated that Mr. Cernik’s behavior was “more likely the result of his sexual addiction when combined with his bipolar disorder and cognitive deficiencies than any sexual deviancy” (Ref. 44, p 7). Dr. Miller concluded that Mr. Cernik had no history of seeking sex with children, denied having a strong sexual interest in underage females, and that the cognitive deficits responsible for his behavior could be successfully treated in a community setting.

The U.S. District Court for the Eastern District of Michigan, Southern Division relied on expert testimony and ruled that an extensive prison sentence would not benefit Mr. Cernik or the public. Mr. Cernik was sentenced to 60 days of probation, continued psychological therapy, mandatory counseling with a registered sex-offender therapist, participation in a relapse prevention therapy, and enrollment in Sexual Addictions Anonymous.

U.S. v. Thompson

In U.S. v. Thompson,⁴⁵ a grand jury indicted Mark Anthony Thompson and Rosalie Dornellas in April 2014 on one count each of attempting to use a child to produce a visual depiction of sexually explicit conduct and attempting to entice a minor to engage in criminal sexual activity. In June 2014, Ms. Dornellas met with psychologist Margot Hasha, PhD. Hasha found that Ms. Dornellas exhibited symptoms of major depression and PTSD and had “difficulty understanding concepts and exhibited a level consistent with the cognitive development of a 6 or 7-year-old” (Ref. 45, p 761). Ms. Dornellas pleaded guilty and agreed to assist in the case against Mr. Thompson.

Mr. Thompson reported during his trial that he had fantasized about having sex with Ms. Dornellas’s daughter but did not intend to act on his fantasy. The district court found Mr. Thompson guilty on both counts and sentenced to 360 months in prison, followed by 10 years of supervised release.

At the request of the defense, licensed counselor Jennifer Weeks, PhD, who specialized in sexual and substance addiction, evaluated Mr. Thompson. She performed a sexual addiction screening that suggested Mr. Thompson might be hypersexual. Nonetheless, she testified that the test was not well studied and did not have a validity scale. Because of the lack of validity and complete exclusion of sexual addiction in the DSM-5, the district court excluded her testimony. Mr. Thompson challenged the district court’s exclusion of expert testimony. The Fifth Circuit Court of Appeals affirmed Mr. Thompson’s conviction.

Winston v. Maine Technical College (1993)

In Winston v. Maine Technical College,⁴⁶ Donald Winston was terminated from his employment as a teacher in the Maine Technical College System for violating the school’s sexual harassment policy by kissing one of his 18-year-old female students after a sexually suggestive conversation. Although the termination letter mentioned only the single incident, the college was aware of four prior instances of sexual behavior with students.

Mr. Winston subsequently filed a lawsuit against the school alleging that he was unlawfully discriminated against based on his mental handicap of compulsive sexual addiction. The record contains evaluations of Mr. Winston by three mental health professionals, two of whom diagnosed his sexual addiction as impulse control disorder not otherwise specified. Both stated that Mr. Winston’s disorder led to his termination, that the addiction was a permanent condition, and that he could perform his job as a teacher without accommodation. The third expert testified that he did not believe the DSM-III-R was intended to be applied to sexual behavior, and that even if it were, Mr. Winston’s behavior was controllable rather than compulsive.

The Supreme Judicial Court of Maine ruled in favor of the College on all claims, ruling that Mr. Winston’s claimed disability did not qualify him for protection under the Rehabilitation Act of 1973,⁴⁷ which aimed to protect persons with disabilities from discrimination based on their conditions.

In Re Leonard

In September 2015, the FBI executed a search warrant at the residence of Mr. Leonard (first name not disclosed), which he shared with his then-wife, Megan Wolgast, and their children, who were two and four years old at the time. The FBI seized Mr. Leonard’s computer and found that he had downloaded approximately 5,000 images of child pornography, many of which contained images of penetration of preschool-aged children. Mr. Leonard admitted to accessing and downloading child pornography since 2012.⁴⁸

While on bond, Mr. Leonard was granted court-ordered, supervised visitation with his children. In July 2017, he pleaded guilty to one count of possession of child pornography. He was sentenced to 36 months in prison (a downward departure from the guidelines of 97 to 121 months), after which he would be required to register as a sex offender. At sentencing, the court cited as mitigating factors his seeking of treatment for addiction to pornography and his appearing “to be treatable.”

Approximately three months after Mr. Leonard’s arrest, Ms. Wolgast initiated divorce proceedings and sought termination of Mr. Leonard’s parental rights. Mr. Leonard testified about the devastating effect of the death of their first child on him and could not recall any use of child pornography prior to the child’s death. He testified that he took steps to protect his family from his addiction and continued to care for his children during this time. He also stated that shortly after his arrest, he began counseling and therapy and was diagnosed with a pornography addiction, which he believed he could overcome.

Psychologist Steven Miller, PhD, an expert in psychosexual risk assessment, evaluated Mr. Leonard on three occasions between 2016 and 2017. Miller diagnosed Mr. Leonard with “adjustment disorder with both depression and anxiety” and some passive-aggressive traits that did not meet criteria for a personality disorder (Ref. 48, p 3). Miller also conducted an Abel Assessment for Sexual Interest-3 test,⁴⁹ which revealed that Mr. Leonard did not demonstrate a sexual interest in children aged 13 and younger. Miller testified that Mr. Leonard exhibited “characteristics of some compulsive features… of a sexual addiction” and that he was taking steps to address his addiction (Ref. 48, p 3). He also testified that Mr. Leonard showed no signs of “predatory offending” and was capable of being a fit parent.

Jennifer Zlkowski, MS, LLO, also conducted a psychological evaluation, which revealed that Mr. Leonard’s view of pornography became increasingly deviant, that Mr. Leonard knew what he was doing was wrong and wanted to stop but was afraid to seek help. She also noted that Mr. Leonard turned to pornography to relieve stress.

After considering several factors, including the children’s bond to their father, the ages of the children in the images being the same as the Leonard children, and the graphic quality of the images, the trial court concluded that the termination of Mr. Leonard’s parental rights was in the children’s best interest. Mr. Leonard appealed the decision. Because the trial court failed to weigh all the evidence when reviewing the children’s best interests, the State of Michigan Court of Appeals reversed and remanded the decision.

State of New York v. Victor H.

In State of New York v. Victor H,⁵⁰ Victor H. was arrested for a burglary in 1990. Days after his release, he broke into a woman’s home, raped her at knifepoint, robbed her, and escaped the scene. Mr. H was arrested after his former prison cell mate informed law enforcement that Mr. H told him of his plan to “rape a white woman” (Ref. 50, p 2). Based on the cell mate’s reports, Mr. H was also linked to another rape on the day of the burglary in 1990. He was charged with, and pleaded guilty to, two counts of first-degree rape. The trial court sentenced him to an indeterminate term of imprisonment of 11 to 22 years, to be served concurrently.

In 2013, as Mr. H was nearing anticipated release, the Department of Corrections and Community Supervision gave notice to the Office of Mental Health and the Office of the Attorney General that Mr. H may be a detained sex offender. Mr. H was referred to a case review team to evaluate whether he met the criteria of a sex offender requiring civil commitment upon his release. The examining psychologist employed by the Office of Mental Health, Ronald Field, PhD, diagnosed Mr. H with antisocial personality disorder, cocaine use disorder, and hypersexuality. Field opined that there was mounting evidence to support that Mr. H met criteria for hypersexuality, which he testified was supported by a “history of multiple sexual partners, regular use of prostitutes, massage parlors, phone sex, Internet use, disturbing sexual thoughts or dreams” (Ref. 50, p 32). The case review team concluded Mr. H was a sex offender and required civil commitment. Field took into consideration Mr. H’s incarceration time, during which he targeted young inmates who appeared to be homosexual and forced them to have sex with him. He was quoted as saying the following: “I overpower;” “I rip off their shirts;” and “I dominate, plain and simple” (Ref. 50, p 7).

Subsequently, Mr. H filed a motion for a Frye hearing. The defense argued that the state of New York failed to prove that the condition of hypersexuality was generally accepted by the scientific community. The defense called two experts, forensic psychologist Leonard Bard, PhD, and Raymond Knight, PhD, a professor emeritus of Psychology at Brandeis University. The defense argued that there were no established criteria or consensus for the definition of hypersexuality and the criteria for hypersexuality had not been subjected to vigorous scientific research. The defense added that a similarly defined hypersexuality disorder diagnosis was rejected for inclusion in the DSM-5.

The state called upon two experts, Rory Reid, MD, an Assistant Professor of Psychiatry at the University of California, Los Angeles, and Jacob Hadden, PhD, a consulting forensic psychologist who had previously worked for the Office of Mental Health. The state argued that it met its burden to prove that the condition of hypersexuality is generally accepted in the scientific community but did not proffer a diagnosis of hypersexuality, which had been rejected in the DSM. Rather, it relied on characteristics of hypersexuality that had previously gained more widespread acceptance, as evidenced by the inclusion of hypersexual behaviors in personality disorders, mania, and other disorders. Defense expert Bard testified that because of its broad definition, the term “condition” does not hold clinical significance, stating he only relied on DSM-approved diagnostic entities in his assessments.

The state argued that the DSM revision process was politically charged and resistant to the addition of any diagnosis that could be used in support of the civil confinement of sexual offenders. The defense argued that the exclusion was simply the result of the disorder not being generally accepted in the field, as evidenced by an open letter written to the president of the APA and signed by approximately 100 psychologists urging the exclusion of hypersexuality disorder.

The Kings County Supreme Court of New York ultimately determined that the state had met its burden to show that the condition of hypersexuality was generally accepted in the relevant psychological community and could be admitted at trial.