Sentencing Law and Policy: Can downloading of child porn be blamed on post-traumatic stress disorder?

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December 12, 2009

Can downloading of child porn be blamed on post-traumatic stress disorder?

This local story from Virginia, which is headlined "Navy officer gets 40 months for child porn," reflects recent debates over both the federal child porn sentencing guidelines and showing leniency for those who served our country in the military. Here are the details:

A Navy lieutenant commander who served in Iraq with an elite Riverine unit was sentenced today to 40 months in prison after admitting he downloaded child pornography. John J. Hall blamed his actions in part on post traumatic stress disorder, a claim that the judge in the case took into account in granting leniency.
The U.S. Attorney’s Office asked for a 70-month prison term, but U.S. District Judge Mark S. Davis cited Hall unblemished record and achievements in uniform in sentencing Hall to well below federal recommended guidelines.
Hall pleaded guilty in July to one count of possessing child pornography. He admitted that he downloaded child pornography in the fall of 2006 and then again upon his return from Iraq in 2007. Authorities discovered 288 child porn images on his computer. Hall has just shy of 20 years of service.

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December 12, 2009 at 07:41 AM | Permalink

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Comments

The left wing ideologues could point to 100 other personal features. They pick military experience. This is more denigration of our military and the war on terror. Their logic is that the war and the military cause PTSD. It is an excuse, a cause of downloading child porn. That is the offensive message of the left wing. Defendants will seek that advantage in many other trials.

The downward revision of the sentence should have been down to 4 days because this defendant caused no provable harm. He just happens to be male. And now the lawyer is picking on his service to our nation, to denigrate it by making it a factor in sentencing for this charge.

If child porn provides some comfort for the victim of PTSD, then the charge and any sentence violate the ADAAA by denying his necessary, harmless, and not burdensome accommodation. He should enjoin the prosecution and the judge. This is ridiculous, but no more than the baseless decision of this judge?

Posted by: Supremacy Claus | Dec 12, 2009 10:01:45 AM

"Can downloading of child porn be blamed on post-traumatic stress disorder?"

ANYTHING can be blamed on post-traumatic stress disorder. And is.

I've had a lot of stress in my life, as have most adults, but amazingly enough, not once has it caused me to take a sexual interest in five year-old's.

Posted by: Bill Otis | Dec 12, 2009 11:18:46 AM

"I've had a lot of stress in my life, as have most adults, but amazingly enough, not once has it caused me to take a sexual interest in five year-old's."

Well, not yet anyway.

Posted by: Daniel | Dec 12, 2009 11:26:15 AM

Bill, when you came back from being in war, where I assume you saw your friends killed and maybe had to kill people yourself, did you do things you wouldn't have otherwise done? Maybe you didn't look at child porn, but I would be surprised if you didn't do some thigns that you would have been widely out of character for you.

Posted by: Bail | Dec 12, 2009 11:37:35 AM

Daniel and Bail --

The idea that a person not previously sexually attracted to five year-old's would become attracted to them as a result of combat experience is preposterous. I challenge you to come up with a single credible, scientific study showing that combat experience changes sexual orientation.

The two of you are merely proving my point: PTSD can be and is used as an excuse for anything.

Not that this ia all that surprising, since, in the world of defense lawyering, getting out of bed in the morning can be used as an excuse for anything.

Daniel -- It's a little late in life for me to change, nor do I care to.

Bail -- Your post is 100% speculation.

Posted by: Bill Otis | Dec 12, 2009 12:13:11 PM

I don't say that PTSD contributes to a desire to download porn. I still maintain, however, that the government (we, the people) are in great debt to veterans who saw combat. As part payment of that debt, or, if you like, as full payment of that debt, we can cut the veteran a break at sentencing when he goes astray. I'm not saying forgive him, or sentence him to probation. Just give him a break. Cut some time off his sentence--as the federal judge did here. That is just and fitting. And the Suprmes agree 9-0.

"Moreover, the relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

Porter v. McCollum 130 S.Ct. 447, 455 (U.S.,2009) (per curiam)

Posted by: anon | Dec 12, 2009 12:46:48 PM

Bill, I don't understand your position. The defendant obviously made a choice to download child pornography -- a really bad choice. Is it your position that being in war, and the stress from war, could not be a factor in the defendant making that really bad choice? Don't respond with a strawman. I'm not saying he should not be punished or that he's the victim or that he isn't responsible for his choices. Rather, I’m saying that people who risk their lives for our country and our freedom and go through a horrifically traumatic experience in the process often make really bad choices that they would not have otherwise made. Given that, perhaps we should punish him less harshly.

But perhaps your experience risking your life for your country was different. Was it?

Posted by: Bail | Dec 12, 2009 12:56:26 PM

Extreme stress and depression often lowers self control.

The rest follows in different ways for different people.

No all image offending is related to these issues.

WM

Posted by: Dr Nigel Leigh Oldfield | Dec 12, 2009 1:19:07 PM

Bill. I was teasing you.

As a psychologist I agree with your point. The difficulty is the *causation*. Is it possible for PTSD to cause someone to download porn when they might have otherwise. Sure. But is that what happened in this case? Who knows. Unless a psychologist has been treating someone for a lengthy period of time it's impossible to say. The confounding factors are numerous.

Posted by: Daniel | Dec 12, 2009 2:42:53 PM

"I’m saying that people who risk their lives for our country and our freedom and go through a horrifically traumatic experience in the process often make really bad choices that they would not have otherwise made."

The problem with this logic is that it has no end. Policemen, fire fighters, etc. all risk their lives for the good of the community. Do they get a freebie rape too? What about a High School teacher? Some of those places are awful. Where do you draw the line.

IMO there shouldn't be any line to draw at all. Service to the country and the community is an honor. I'm not suggesting that veterans or anyone else for that matter should have their mental health be ignored. But they are fighting to uphold the rule of law. They, more than anyone else, should be held to account.

Posted by: Daniel | Dec 12, 2009 2:57:49 PM

Daniel and Bail --

Many years ago there was a conservative Congressman named Bob Bauman. He was caught by the papers going into a Washington, DC, gay bar. He eventually said that it was all because he was an alcoholic.

And it's true that he was an alcoholic. But that had zilch to do with why he went to the gay bar. He went there because he was a homosexual. Period.

I never held his homosexuality against him. I did, however, hold his lying against him. The former wasn't his choice; the latter was.

Similarly, I don't believe for a minute that this Naval commander developed a taste for kiddies because of combat. It had nothing to do with combat. It's because he has a sexual taste for kiddies.

Bail, you're trying to fudge the issue by muzzing it over as an unspecified "bad choice." But it was a specific kind of choice, that being to access child porn. That specific thing -- which is to say, the only thing he was convicted of or sentenced for -- has nothing to do with military service.

You're also trying to goad me into disclosing my own military service or lack thereof. That I am not going to do. I use my real name here, which is more than 80% of commenters (including you) do, and I have discussed my legal career, which again is more than typical here. That's it. My military service, such as it may or may not have been, is private, and is, moreover, irrelevant to the topic. Whether PTSD can produce sexual deviancy is not a question that has beans to do with me personally.

Posted by: Bill Otis | Dec 12, 2009 3:40:18 PM

anon --

"I still maintain, however, that the government (we, the people) are in great debt to veterans who saw combat."

I agree. Too bad that liberals, through one of their favorite organizations, MoveOn.org, trashed combat veteran Gen. David Patraeus as Gen. "Betray Us."

Too bad, but in a sense worth it, since it's educational to see what lies behind the mask when it slips every now and again.

Posted by: Bill Otis | Dec 12, 2009 3:52:41 PM

Bill: The facts abandoned the left 100 years ago. All that remains for them is to attack the person. They killed 100 million people. They still failed to persuade anyone of the validity of the left wing.

That is what it is about, Personal attack because there are no facts to support their side in the traverse.

Posted by: Supremacy Claus | Dec 12, 2009 5:31:15 PM

Is there any proof that some or the majority of those who view child porn do so because they are "sexually attracted" to little kids? Are people who watch horror movies "attracted" to murder? Are they dangerous? Why not the same outcry over rotten.com? Aren't they all murderers and mutilators laying in wait? Maybe some or even most viewers of child porn really are attracted to children, but that's doesn't mean everyone or this man was. And maybe sexual attraction isn't the majority's motive.

Posted by: George | Dec 13, 2009 1:27:22 AM

There is abundant proof they are male. The vile feminist lawyer and its male running dogs are on a rampage to hunt and attack the productive male. These laws are pretexts.

Posted by: Supremacy Claus | Dec 13, 2009 1:37:53 AM

Bill, how morally culpable someone is for criminal conduct depends not only on the offense of conviction, but on their character. If someone’s otherwise lived a very bad life (committed lots of crimes in the past, hurt lots of people), we think we should punish that person more. If someone has otherwise done things that shows they have lived a noble life (risked their life for the country, helped others), we think we should punish that person less harshly when they mess up and commit a crime.

This isn’t an issue of whether the person should be punished and whether their prior good deeds mean they should get a free pass. Nor is it an issue of whether PTSD can “produce” sexual deviancy. (Why do you constantly set up straw men in so many of your posts here?) Rather, it’s an issue of whether we think we should show some mercy to someone who commits a crime who has previously honorably served his country, whose service resulted in PTSD, and that stress contributed to him making a horrible choice. (And he is being prosecuted not because he is “attracted to kids,” but because he made the choice to view child pornography.)

Posted by: Bail | Dec 13, 2009 2:46:10 AM

Bill writes: "Policemen, fire fighters, etc. all risk their lives for the good of the community. Do they get a freebie rape too?"

In the case of policemen, I can point to several cases where the answer is "Yes." It's difficult to get prosecutors to charge rape or juries to convict in such cases because of sympathy for the accused police officer and their attorney at their side chanting like a mantra that their client "puts his life on the line every day."

I'm thinking of one case in particular here in Austin where an officer on-duty forced a woman to perform oral sex. She had the presence of mind to spit the cum into a baggie, immediately called 911 when he left, and they matched his DNA. The prosecutor only charged him with misdemeanor official oppression, which is the generic "I don't want to charge a cop with a felony even though he deserves it" charge.

Even more common is to allow officers to resign over things you or I would be indicted for. Similarly, Texas prison towns notoriously won't convict or even indict guards with misconduct cases because of local public sympathy for the COs sacrifice and service.

Plenty of people with badges are given freebies.

Posted by: Gritsforbreakfast | Dec 13, 2009 7:37:58 AM

George --

"Is there any proof that some or the majority of those who view child porn do so because they are "sexually attracted" to little kids?"

I am not a psychologist (Daniel is, I believe), but I have to think that people who download kiddie porn do so for the same reason 13 year-old boys look at Playboy and to facilitate the same, uh, activity.

Posted by: Bill Otis | Dec 13, 2009 9:04:28 AM

Grits --

"Bill writes: 'Policemen, fire fighters, etc. all risk their lives for the good of the community. Do they get a freebie rape too?'"

Actually, Daniel wrote it, here: Dec 12, 2009 2:57:49 PM

If a point be made of it, police who devalue the profession in the way you describe should receive harsher, not more lenient treatment, than the average offender. Their offense entails an abuse of authority and of the public trust that does not exist in the heartland case.

There may be items in the policeman's record that point the other way, of course, and it is fair to consider them as well.

Posted by: Bill Otis | Dec 13, 2009 9:16:45 AM

Bail --

"Nor is it an issue of whether PTSD can 'produce' sexual deviancy. (Why do you constantly set up straw men in so many of your posts here?)"

It's news to me that a "strawman" consists of addressing precisely the topic of the entry, the title of which is: "Can downloading of child porn be blamed on post-traumatic stress disorder?"

Posted by: Bill Otis | Dec 13, 2009 10:11:54 AM

Ah, yes, Bill. That's obviously what Professor Berman means. Obviously.

Posted by: Bail | Dec 13, 2009 11:07:38 AM

"Rather, it’s an issue of whether we think we should show some mercy to someone who commits a crime who has previously honorably served his country, whose service resulted in PTSD, and that stress contributed to him making a horrible choice.

Put that way the answer is simply, no.

It was Justice Holmes who said that a man's heart can be as bad as he wants so long as he obeys the law. The reverse is also true. That a man's heart can be as good as he wants but if he breaks the law he gets punished.

The law nor a sentence should reflect an individuals "moral" character. I recognize that it often does, but I don't agree with that approach. I believe that laws reflect a communal judgment of the harm a particular behavior does to the fabric of the community. The punishment should fit the harm done. That harm is in no way mitigated by prior or future good acts.

Posted by: Daniel | Dec 13, 2009 11:34:46 AM

George writes, "Is there any proof that some or the majority of those who view child porn do so because they are "sexually attracted" to little kids?"

Yes, it's honest to say that the majority are "sexually attracted" to children understanding that does not mean all. Some are just attracted to sexual "deviance" and child porn is a subset of that. Some are attracted to the implicit or explicit violence and children are a subset of that. Heck, some are just attracted to "deviance" period and child porn is just a walk on the wild side.

"Are they dangerous?"

That all depends on how you define dangerousness. If you mean dangerousness in terms the likelihood of actually engaging in the activity viewed, the answer is no. If you define dangerousness as anyone having a psychological state that does not conform to one's own subjective liking then they are dangerous indeed.

Posted by: Daniel | Dec 13, 2009 11:48:01 AM

"If you define dangerousness as anyone having a psychological state that does not conform to one's own subjective liking then they are dangerous indeed."

Is this bright line dangerous? *

* Insert required disclaimer that I do not condone child porn here.

"SOAL" posted a list of studies here on this blog.

Posted by: George | Dec 13, 2009 12:48:52 PM

Bail --

It's likely that Professor Berman meant exactly what he said. The title he put on this thread is, "Can downloading of child porn be blamed on post-traumatic stress disorder?" That is exactly what I've been talking about, and what you, quite oddly, call a "strawman."

Posted by: Bill Otis | Dec 13, 2009 1:53:33 PM

it actually would be nice if there was more information available about this case. especially since the article seems to imply that he first downloaded the images before going to Iraq - so I'm really curious about the exact circumstances of this case.

Posted by: virginia | Dec 15, 2009 5:55:11 PM

Alright listen up you blowhards! PTSD can cause any number of compulsive behaviors and it often does! I have it, several of my friends have it and we struggle with it. One of my closest buddies was going out and sleeping with every woman he could, drinking heavily, getting hookers, etc. He was never like that before PTSD but the overwhelming stress you feel for no reason other than Shell Shock leads you to act out.

Remember the old saying "Shell Shock"? That's PTSD!

So listen up you CIV blog trolls. I do believe that this Soldier 'may' have been compelled to download these images because of the effects of PTSD. PTSD won't change your sexual orientation but it can lead you to very self destructive acts that are outside of your moral character...porn included!

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