Downward Departure in Sentencing Granted Due to Autism Spectrum Disorder

(ksd.uscourts.gov)

Defendants have used evidence of their Autism Spectrum Disorder (ASD) diagnosis to argue for downward departure of sentencing in a number of child pornography cases. See People v. Frenger, 124 N.Y.S.3d 913 (Sup. Ct. 2020); United States v. Shore, 2020 WL 3791550. In October 2021, the United States District Court of Kansas granted defendant Erik M. Huseth’s motion for a downward variance in sentencing due to his ASD after Huseth pled guilty to possession of child pornography.

32-year-old Huseth was found with over 12,000 images and videos of infants, toddlers, children, and teenagers, including those that depicted sadistic or masochistic conduct, and pled guilty to his possession of child pornography charge in 2018. In his motion for substantial downward variance and substantial departure downward, Huseth cited his ASD, his significant cognitive impairments, his particular vulnerability to manipulation due to ASD, and his need for treatment for ASD. Huseth requested a sentence of probation instead of 8–10 years in prison as the sentencing guidelines suggested. In contrast, the government advocated for a sentence reduced only to 6.5 years.

At sentencing Huseth presented three experts, while the government had two experts. Huseth’s experts included psychologist Sarah Dettmer who had treated Huseth for ASD; psychologist Dr. Rachel Loftin, who specializes in ASD; and neuropsychologist Dr. George Athey, who specializes in treatment of sex offenders and stated that Huseth does not have Pedophilic Disorder. The government’s experts included Dr. Eric Imhof and Dr. Kimberly Spence, who interviewed Huseth and read the reports of Dr. Loftin and Dr. Athey, and found that Huseth has ASD and Pedophilic Disorder. As such, while there was no dispute that Huseth has ASD, there was a dispute about his degree of impairment, especially pertaining to his ability to fully appreciate the wrongfulness of possessing child pornography. There was also a dispute about whether Huseth had Pedophilic Disorder.

In deciding whether to grant the downward variance, the court considered the nature and seriousness of the offense, which was typical for child pornography with no aggravating factors. Additionally, the court considered the sentencing goal of promoting respect for the law, and found that Huseth is a rule-follower and prison was unnecessary to promote respect for the law. The court also heard expert testimony on the history and characteristics of the defendant, specifically his ASD. Dr. Loftin explained that Huseth’s social-communication deficits were severe, leading him to function on the level of an 8-year-old child.

The government argued that Huseth had a high IQ, good vocabulary, attended college, and could drive a car as evidence that his ASD was not severe. However, Dr. Loftin noted that “intelligence is no hedge against severe impairment of adaptive functional ability,” and that Huseth dropped out of college because he struggled with projects that required interacting with others.

Huseth acknowledged that he had the mens rea for possession of child pornography, and that his ASD did not cause him to possess child pornography, but argued that his ASD impaired his ability to understand why it was wrongful and that children were harmed in its production. Huseth had an impaired ability to read the facial expressions and emotional states of the children and to understand that all children in child pornography are being hurt.

Due to the expert testimony, the court found that Huseth’s ASD and associated severe cognitive deficits significantly impaired his ability to fully appreciate the wrongfulness of possessing and viewing child pornography. The court also worried that he would face bullying and injury in a prison environment. The court also found that Huseth did not have Pedophilic Disorder, so a probation sentence with treatment and therapeutic conditions tailored to his ASD and sex offenders was sufficient to satisfy statutory sentencing requirements, because the sentence adequately to addressed the need for therapeutic treatment, there was a low risk of recidivism, and there was little need to protect the public from Huseth’s further crimes.

Citation: United States v. Huseth, 2021 WL 4940915.

Keywords: Kansas, pedophilia, child pornography, Autism Spectrum Disorder (ASD)

This post is the 119th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.

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