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The Frightening Intersection of Child Pornography and Asperger's Syndrome

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The inability to fully monitor what a child or young adult does on the Internet is a constant struggle and source of anxiety for so many parents. However, that fear is extraordinarily heightened for parents of children with Asperger's Syndrome (hereinafter “AS”). Regardless of their age, individuals with AS are particularly vulnerable to the darkness and uncertainty of the Internet.

AS is a severe and chronic developmental disorder on the Autism Spectrum. Those with AS struggle immensely with social isolation, verbal and non-verbal communication, and appreciating social barriers and expectations.

These individuals are generally curious about sexuality and the body. The Internet has enabled everyone, including those with AS, to engage in social interaction via discussion groups and websites - some of which may contain illegal images. Their curiosity and desire for social interaction, when coupled with an inability to recognize appropriate social norms, can lead individuals with AS down dangerous paths.

An individual with AS is typically unable to understand and appreciate the significance or inappropriate nature of illegal images and photographs that they find through the Internet. They are unable to recognize the problems associated with looking at images of a minor child who may be of a similar age or social adaptation level. Therefore, individuals with AS are falling prey to charges of Child Pornography on both the State and Federal level.

State and Federal Courts across the country are seeing an increase in Child Pornography cases where the Defendant has a confirmed diagnosis of AS or where the Defendant falls somewhere on the spectrum, potentially just below the criteria for a formal AS diagnosis. Experience has shown that our criminal justice system is ill-equipped to deal with this unique and frightening intersection between individuals with AS and the viewing, downloading, distribution, and or transportation of Child Pornography materials.

Most Child Pornography statutes do not require proof that the accused be aware that what he or she was doing was wrong. Instead, these laws simply require that the person know the content of the material depicts a person under the age of eighteen in a sexually oriented way. For instance, Ohio Revised Code Section 2907.321, which criminalizes Pandering Obscenity Involving a Minor or Impaired Person, simply requires that the offender have knowledge of the character of the material or performance involved, not that the offender have knowledge of the wrongfulness of the material or performance depicted. See R.C § 2907.321. Likewise, the federal statute prohibiting the possession of Child Pornography only requires the Government to prove that the offender "knowingly possesses, or knowingly accesses with the intent to view, 1 or more books, magazines, periodicals, films, videotapes, or other matter which contain any visual depiction..." See 18 U.S.C. § 2252(a)(4)(B).

While this approach may be reasonable for the vast majority of Defendants, it fails to account for individuals with AS, whose condition may inhibit their ability to appreciate the wrongfulness of their conduct. The only aspect of State or Federal law that may account for an individual’s inability to appreciate the wrongfulness of their conduct may be the affirmative defense of Insanity. In Ohio, a person is “not guilty by reason of insanity” relative to a charge of an offense only if the person proves that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts. See OR.C. § 2901.01(A)(14). However, this would require the fact finder to ultimately find that 1) AS qualifies as a severe mental disease or defect, 2) that the individual, in fact, did not know the wrongfulness of their acts because of the AS, and 3) that the individual was operating off of that belief at the time he or she committed the offense.

The issue is further compounded when considering the significant and seemingly draconian penalties attendant to Child Pornography offenses. Specifically, the sentences for Child Pornography offenses, both at the state and federal level, are some of the harshest within the realm of criminal sentencing. According to the United States Sentencing Commission, in 2019, 99.1% of Child Pornography offenders were sentenced to prison for an average term of 104 months. See United States Sentencing Commission, Quick Facts, Child Pornography Offenders (2019). Additionally, Ohio’s Child Pornography laws grant courts discretion to impose a sentence of two to eight years in prison for each count (i.e. image or video) of conviction. See, e.g., R.C. § 2907.321(C). And, although the court is not required to impose a term of incarceration, the law provides a presumption in favor of prison for such offenses. See R.C. § 2929.13(D)(1).

As these examples clearly illustrate, the current laws governing Child Pornography offenses fail to recognize that an individual may possess, receive, and or distribute the material and know that it contains sexually explicit materials of individuals under the age of eighteen while at the same time be unaware – or at least not fully appreciate – that it is wrong to possess said material based on legal and social standards. This key difference is what makes a case involving Child Pornography extraordinarily different for an individual with AS. Moreover, unless a prosecutor truly understands the cognitive limitations and functionality associated with AS, these individuals will continue to face prosecution and severe punishment for Child Pornography offenses.

The intersection of the criminal justice system and those with developmental disabilities is always a frightening one. However, the expanding and prolific use of the Internet has only increased the opportunity for those with developmental disabilities, including AS, to access potentially illegal materials without the understanding that their actions may be violative of social boundaries and the law.