Case No. VSO-0318, 27 DOE ¶ 82,848 (H.O. Augustyn May 11, 2000)

Case No. VSO-0318, 27 DOE ¶ 82,848 (H.O. Augustyn May 11, 2000)

For full history of this case, and links to other cases, click here.

* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX’s.

May 11, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:November 29, 1999

Case Number: VSO-0318

This Opinion concerns the eligibility of XXXXXXXX (the individual) to retain an access authorization under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria for Access to Classified Matter or Special Nuclear Material."(1) A DOE Office suspended the individual’s access authorization under the provisions of Part 710. This opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual’s access authorization should be restored. As explained below, I recommend against restoring the individual’s access authorization at this time.

I. Background

For more than 20 years, the individual has been employed by a DOE contractor in a position that requires him to maintain a security clearance. In 1997, the individual revealed during a routine background reinvestigation that he had consulted with several mental health professionals over an extended period of time to address a number of matters, including some issues relating to his sexual behavior. The DOE conducted a Personnel Security Interview (PSI) with the individual in 1997 (1997 PSI) to address these issues. The individual subsequently granted permission to the DOE to review his medical records but due to circumstances beyond the individual’s control, the DOE never received the records until 1999. In light of the passage of time, the DOE conducted a second PSI in 1999 (1999 PSI) to determine what, if anything, had changed since the 1997 PSI. The 1999 PSI failed to resolve security concerns about several issues. Accordingly, the DOE referred the individual for a psychiatric evaluation by a DOE consultant-psychiatrist who conducted an examination of the individual. On the basis of the evaluation, the DOE consultant-psychiatrist opined that the individual has an illness or mental condition, Paraphilia Not Otherwise Specified (NOS), which causes or may cause a significant defect in his judgment and reliability.(2)

Soon thereafter, the DOE issued a Notification Letter to the individual that identified the individual’s mental health and his sexual behavior as derogatory information that cast doubt about his continued eligibility for a security clearance. According to the DOE, the derogatory information at issue falls within the purview of 10 C.F.R. § 710.8(h) and (l) (Criteria H and L, respectively).(3)

The individual responded to the Notification Letter by filing a request for a hearing. The DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director, who appointed me as Hearing Officer in this case. I convened a 10-hour hearing in this matter within the time frame prescribed by the regulations governing the administrative review process. See 10 C.F.R. § 710.25(g). At the hearing, the DOE called three witnesses: two DOE personnel security specialists and the DOE consultant-psychiatrist. The individual offered his own testimony and that of four other witnesses: a board-certified forensic psychiatrist, a mental health counselor/marriage and family therapist, and two former co-workers, one of whom regularly attends Alcoholics Anonymous (AA) with the individual. On April 11, 2000, I received the hearing transcript (Tr.) at which time I closed the record in this case. See 10 C.F.R. § 710.27(e).

II. Findings of Fact

The individual has an extensive history of visiting prostitutes, massage parlors and other establishments to obtain a variety of sexual services. From 1971 to 1978, the individual regularly solicited prostitutes one to four times each month. Tr. at 136, 148. In 1977, the individual was arrested for soliciting an undercover police officer. Ex. I at 130-31; Tr. at 249. In October 1978, the individual married his first wife. After ten months of marriage, the individual began soliciting prostitutes from the street, using escort services, and frequenting establishments such as massage/lotion parlors and body painting studios. Ex. I at 136-40; Tr. at 138, 247-48. According to the individual, he continuously engaged in these activities one to four times a month for seven years while married to his first wife. (4) Id. at 248-49. The individual reports that after his first wife found a receipt from a massage parlor and confronted him, he refrained from obtaining commercial sex for a two-year period, 1986 to 1988. During this same time period, the individual began attending two support groups, Sex and Love Addicts Anonymous (SLAA) and Sexaholics Anonymous (SA). Ex. I at 145-58. In 1988, the individual separated from his first wife. For the next two years, the individual resumed contact with massage parlor attendants and, to a lesser extent, prostitutes one to four times a month. Ex. 3 at 3. The individual claims that he sometimes abstained from obtaining commercial sex for periods ranging from 60 to 90 days during this two-year period. (5) Tr. at 253.

In 1991, the individual married his second wife. Ex. 3 at 3. Until he separated from his second wife in 1995, the individual claims he did not engage in any extramarital sexual activities for a four-year period. Id. The individual resumed regularly using the services of massage parlors from 1995 to 1997 and reports that he last used the services of a prostitute sometime in 1997. He claims he has visited massage parlors only three times since the 1997 PSI, with his last visit occurring approximately six months after the 1999 PSI in June 1999.

The record reflects that the individual has sought and received services from several mental health professionals in the last 15 years. From 1985 to 1986, the individual sought counseling on his own initiative for anger management and low-level depression. Ex. I at 78-99; Ex. J at 4. From 1988 to 1992, the individual periodically saw a licensed social worker for marital, communication, anger, and child-rearing issues. Ex. N, Ex. I at 82. In 1992, the individual was referred to a psychiatrist after he began experiencing homicidal ideations towards his first wife in the wake of a bitter child- custody dispute. Exs. G, H, I at 82 and N. In 1995, his employer referred the individual after a security incident to its Employee Assistance Program (EAP) where a counselor diagnosed him with Dysthymia (chronically depressed mood disorder). Ex. H. In 1995, the individual joined AA to address issues relating to his alcohol usage. That same year, the individual sought help from the EAP for alcohol issues, suicidal ideations, and his divorce. In 1997, the individual visited a mental health counselor/marriage and family therapist (mental health counselor) for a “mental health checkup.” Tr. at 102. The individual has seen the mental health counselor periodically from 1997 until the present time. Of note is the Treatment Plan the mental health counselor created for the individual in January 1998 in which she listed the following diagnoses derived from the fourth revised edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV):

Impulse Control Disorder NOS (sexual acting out)

Major Depressive Disorder, Recurrent, In Partial Remission (severe without psychotic features)

Alcohol Dependence (sustained full remission)

Ex. D.

III. Legal Standards

A DOE administrative proceeding under 10 C.F.R. Part 710 is authorized when derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. A hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 C.F.R. § 710.21(b)(6). The individual must come forward with evidence to convince the DOE that restoring his access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by OSA, 1996), and cases cited therein. This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest” standard for the granting of security clearances indicates “that security determinations should err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990) (strong presumption against the issuance of a security clearance).

The applicable DOE regulations state that “[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). In resolving questions about the individual's access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or recurrence; and other relevant and material factors.

After due deliberation, it is my opinion that the individual’s access authorization should not be restored. I cannot find that a restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings I make to support my conclusion are set forth below.

IV. Analysis

A. Criterion H

In invoking Criterion H, the DOE relied on the opinion of a board-certified psychiatrist who found that the individual is suffering from Paraphilia NOS, a condition that causes or may cause a significant defect in the individual’s judgment and reliability. According to one of the personnel security specialists who testified at the hearing, such a mental condition raises serious questions about whether the individual can be relied on to safeguard classified information. Tr. at 182.

Prior to the hearing, the individual obtained a psychiatric evaluation from a board-certified forensic psychiatrist (Forensic Psychiatrist) who had interviewed the individual for approximately two hours. Ex. 3.(6) Based upon that evaluation, the Forensic Psychiatrist issued a report in which he concluded that the individual does not meet the diagnostic criteria for Paraphilia set forth in the DSM-IV.

Thus, the record presents conflicting psychiatric opinions by two highly credentialed board-certified psychiatrists as to whether the individual suffers from Paraphilia NOS. I consider below the merits of each of the psychiatrist’s respective positions, as well as that of the mental health counselor who has treated the individual irregularly over the last three years. First, however, to better understand the divergent viewpoints of the mental health professionals in this case, it is instructive to set forth the relevant portions of the DSM-IV at issue in this case.

As defined in the DSM-IV, the essential features of a Paraphilia are recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one’s partner, or 3) children or other nonconsenting persons, that occur over a period of at least six months (Criterion A). The behavior, sexual urges, or fantasies must also, according to the DSM-IV, cause clinically significant distress or impairment in a person’s social, occupational, or other important areas of functioning (Criterion B). The DSM-IV differentiates paraphilias into categories such as exhibitionism, fetishism, frotteurism, pediphilia, sexual masochism, sexual sadism, voyeurism and transvestic fetishism. Finally, the DSM-IV recognizes a residual category of paraphilia, Paraphilia NOS, which is defined as follows:

This category is included for coding Paraphilias that do not meet the criteria for any of the specific categories. Examples include, but are not limited to, telephone scatologia (obscene phone calls), necrophilia (corpses), partialism (exclusive focus on part of the body), zoophilia (animals), coprophilia (feces), klismaphilia (enemas), and urophila (urine).

DSM-IV at Section 302.9.

1. The DOE Consultant-Psychiatrist’s Opinion

In the 20 years he has practiced psychiatry, the DOE consultant-psychiatrist has treated more than 500 persons with paraphilia, including 20-25 persons who have manifested the same behavioral characteristics as the individual. Tr. at 51, 167; Ex. P. He has also authored many articles on the subject of paraphilia. Exs. O and P.

According to the DOE consultant-psychiatrist, the individual meets Criterion A of the DSM-IV definition of Paraphilia even though his behavior does not involve nonhuman objects, the suffering or humiliation of one’s partner, or children or other consenting persons. The DOE consultant- psychiatrist points out that the word “generally” precedes the three categories listed, and that all paraphilias do not fall within those three categories. Moreover, he relates that approximately 70% of paraphiliacs fall within those three categories, while 30% do not. Tr. at 69. In addition, the DOE consultant-psychiatrist explained at the hearing that the DSM-IV is not a “cookbook”; there is some degree of judgment that is afforded informed trained clinicians who evaluate patients in a clinical setting and render diagnoses. Id. at 74. The DOE consultant-psychiatrist concluded that it is his professional judgment that the individual’s pattern over a 25-year period of repeatedly soliciting prostitutes and obtaining sexual gratification from massage parlor attendants, body painting studios, and other establishments meets Criterion A of the DSM-IV definition of Paraphilia.

As for Criterion B, the DOE consultant-psychiatrist points out that the individual’s behavior has caused him clinically significant distress in that it has interfered with important areas of his social functioning such as his marriage, finances and job. In addition, the individual has continued this behavior despite the distress it has caused in his life.

At the hearing, the DOE consultant-psychiatrist summarized the main criteria of paraphilia as “engaging in out-of-control paranormal sexual behavior in spite of it creating problems for the person.” Id. at 33. The DOE consultant-psychiatrist analogized the behavior of a paraphiliac to someone who is substance dependent yet continues to use the substance despite the adverse consequences it has for the person. Id.

In his Report, the DOE consultant-psychiatrist affixes the label, chrematistophilia, to the individual’s paraphilia. Chrematistophilia is a term coined by John Money, Ph.D., a reputed authority on paraphilias, in his book, Lovemaps: Clinical Concepts of Sexual/Erotic Health and Pathology, Paraphilia, and Gender Transposition in Childhood, Adolescence, and Maturity. The term is defined by Dr. Money in the DOE consultant-psychiatrist’s Report as “a paraphilia of the mercantile/venal type in which sexuoerotic arousal and facilitation or attainment of orgasm are responsive to, and dependent upon being charged or forced to pay, or being robbed by the sexual partner for sexual services.” Ex. C at 3. At the hearing, Counsel for the individual questioned the DOE consultant- psychiatrist whether under Dr. Money’s definition of chrematistophilia, it was necessary for the individual to have derived sexual satisfaction from the payment process when he engaged in his sexual activity. Tr. at 78-82. The DOE consultant-psychiatrist admitted that one could infer that requirement from Dr. Money’s use of the phrase, “dependent upon being charged or forced to pay.” Tr. at 81. The DOE consultant-psychiatrist then testified, “I’m willing to say John Money is wrong in using the word dependent,” noting further that he has raised this precise issue with Dr. Money. Tr. at 79-84. The DOE consultant-psychiatrist then stated that he has his own definition of chrematistophilia and it appears in a book chapter he coauthored in 2000. The DOE consultant- psychiatrist’s definition of chrematistophilia is “sexual excitement by being charged or forced to pay, or being robbed by the sexual partner for sexual services.” Ex. O at 488. The DOE consultant- psychiatrist added, however, that it is not the exchange of money, per se, but the kind of sexual behavior that results from the exchange of money that falls within the ambit of chrematistophilia. Tr. at 78.

After reviewing all the evidence, I am not convinced that the individual suffers from chrematisophilia. As an initial matter, I am not willing to disregard the definition of chrematistophilia crafted by Dr. Money. This is particularly true given that the DOE consultant- psychiatrist opined under oath that Dr. Money is the “world expert on the subject of paraphilias.” Tr. at 32. Moreover, notwithstanding the DOE consultant-psychiatrist’s testimony to the contrary, the definition that appears in his book chapter appears to suggest, by its very terms, that the payment process is an integral part of the sexual pleasure a person derives from participating in “paid-for- sex.” The individual’s testimony and that of his mental health counselor and Forensic Psychiatrist leads me to conclude that the individual’s behavior does not meet Dr. Money’s definition of chrematistophilia. It is clear to me from hearing testimony of these three people that it is not the payment process that triggers the “sexuoerotic arousal and facilitation or attainment of orgasm” for the individual; rather it is the sexual service being provided to the individual by prostitutes and others. For example, the individual’s mental health counselor testified that the “it was not the exchange of money that aroused the individual during his encounters with prostitutes or other establishments; it was the safety of that detached relationship.” Id. at 128. The mental health counselor suggested further that the individual’s use of prostitutes and peep shows was psychologically safe and uncomplicated interpersonally for him. Id at 104. In addition, the Forensic Psychiatrist testified that “it’s the service where he gets the arousal, not the payment process, or [being] forced to pay or any of those things, both in practice and in fantasy.” Id. at 144. Finally, the individual testified that his motivation for engaging in the sexual behavior at issue was pleasure and relief from stress. Id. at 250.

Notwithstanding my finding that the individual may not fall within the definition of chrematistophilia, I find that the DOE consultant-psychiatrist’s diagnosis of Paraphilia NOS is not necessarily undermined. The DOE consultant-psychiatrist testified at the hearing that he would still have diagnosed the individual as suffering from Paraphilia NOS, even had Dr. Money not written the book in which he described 40 kinds of Paraphilias NOS, including chrematistophilia. Moreover, the DOE consultant-psychiatrist remained in the hearing room to listen to the individual’s testimony and subsequently testified that he is thoroughly convinced the individual has some kind of mental illness. Tr. at 292. The DOE consultant-psychiatrist admitted at the hearing that the individual’s sexual behavior is not a perfect fit for the category Paraphilia NOS. Nonetheless, he concluded that the individual’s behavioral pattern is a close enough fit that he feels comfortable with that diagnosis. Id. (7)

2. The Forensic Psychiatrist’s Opinion

The Forensic Psychiatrist who testified on the individual’s behalf is board-certified in psychiatry and forensic psychiatry (8) and has treated approximately 50 paraphiliacs in his practice. Tr. at 134, 160. He states that during the two-hour examination of the individual in March 2000, he collected information to determine whether or not the individual “had a psychopathology or other psychiatric problem.” Tr. at 136. At the hearing, the Forensic Psychiatrist testified that he found no evidence of psychosis, depression, or clinical anxiety in the individual. Furthermore, he opined that there was “not enough evidence to diagnose [the individual] with any kind of paraphilia, including Paraphilia NOS.” Id. at 146. According to the Forensic Psychiatrist, the DSM-IV is meant to be interpreted strictly and specifically so as not to over diagnose conditions. Id. In this regard, the Forensic Psychiatrist notes that the individual does not fall within any of the categories mentioned under the Criterion A of the DSM-IV definition of Paraphilia, e.g. behavior involving nonhuman objects, the suffering or humiliation of oneself or one’s partner, or children or other nonconsenting adults. Id. at 143. It is the Forensic Psychiatrist’s opinion that the definition set forth above is straightforward and by its own terms does not include visits to massage parlors or prostitutes where the individual paid and received services “ranging from holding and conversation to sexual intercourse.” Id., Ex. 3 at 5. In addition, the Forensic Psychiatrist pointed out that the individual’s use of prostitutes and massage parlors was not the exclusive means he used to attain orgasm. Id. Finally, the Forensic Psychiatrist emphasized that none of the many mental health professionals who either treated or evaluated the individual over the last 15 years diagnosed him with a paraphiliac disorder. Id. All these factors led the Forensic Psychiatrist to conclude that the individual does not suffer from Paraphilia NOS. Tr. at 145.

The Forensic Psychiatrist’s opinion is not convincing for several reasons. First, contrary to the Forensic Psychiatrist’s viewpoint, the definition of Paraphilia under Criterion A, by its own terms, does not contain an exclusive list of paranormal or maladaptive behaviors. Criterion A states, in relevant part, that Paraphilia involves recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving three kinds of situations. The use of the word “generally” strongly suggests to me that there may be other situations in which recurrent, intense sexually arousing fantasies, sexual urges or behaviors might fall within the ambit of Criterion A. Also of importance is the DOE consultant-psychiatrist’s testimony that 30% of the paraphiliacs do not fit within the three categories enumerated in Criterion A. Hence, from a literal reading of Criterion A and a common sense standpoint, I find that the individual’s behavior is not necessarily excluded from coverage under Criterion A.

As for the Forensic Psychiatrist’s position that the individual does not meet the definition of Criterion A because his use of prostitutes and massage parlors was not the exclusive means of obtaining orgasm, I see nothing in Criterion A that indicates the recurrent sexual behavior must be the exclusive sexual behavior in which the individual engages. Further, I accorded much weight to the DOE consultant-psychiatrist’s testimony that “most paraphiliacs obtain most of their sexual outlet not engaging in the paraphiliac behavior, per se, especially if it’s either illegal or in some way jeopardizing their livelihood.” Tr. at 45. Therefore, I find that Criterion A by its own terms does not interpose the element of exclusivity that the Forensic Psychiatrist suggests, nor is the element of exclusivity grounded in evidence gathered by psychiatrists practicing in a clinical setting.

Finally, I am not convinced by the Forensic Psychiatrist’s argument that because no other mental health professionals have previously diagnosed the individual with paraphilia; therefore, he must not suffer from a paraphilia. With the exception of a psychiatrist who saw the individual on one occasion in 1993 when the individual was contemplating murdering his first wife, none of the other mental health professionals who have evaluated or treated the individual to date appear from the record to have been board-certified psychiatrists with experience treating paraphiliacs. In addition, while it is difficult to read the handwritten notes of the mental health counselor who has treated the individual irregularly since 1997, I was struck by several entries in the counselor’s progress notes. See Ex. D. In April 1997, the mental health counselor writes “Discussed sexual deviate problems; attends SLAA (sex and love addicts anonymous), struggling to understand negative relations with women and attraction to prostitutes.” Id. On December 1, 1997, the entry “disclosed sexual addictions” appears in the progress notes. Id. In January 1998, the mental health counselor developed a treatment plan for the individual to address several problems, including one that she codes as “Impulse Control Disorder (sexual acting out).” Id. The progress notes for that same month indicate the individual’s “personal safety and health at risk,” “concern about STDs/AIDS,” and “flirting with danger.” In February 1999, there is also an entry in the medical records indicating “sexual addiction discussed.” Id. In addition, a licensed psychologist who saw the individual in 1995 noted that he discussed “male sexuality issues” in addition to numerous other issues including the individual’s suicidal ideations, marriage and child-rearing issues, anger control, and depression. Ex. F. That same entry indicates that individual felt he had been drinking too much and viewing too much pornography. Id.

3. The Mental Health Counselor’s Opinion

The mental health counselor who has provided counseling and therapy to the individual since 1997 holds a Master’s Degree in Behavioral Science and is a Licensed Professional Mental Health Counselor and Marriage and Family Therapist in the State where the individual resides. Ex. 1. The mental health counselor has counseled the individual 14 times since February 1997. Exs. D, 1. According to the record, she began counseling the individual for his sexual issues in April 1997 and has held 10 sessions with him regarding these issues. Tr. at 103; Ex. D.

At the hearing, the mental health counselor related that she believes the individual’s sexual behavior has gotten progressively better since she began seeing him. Tr. at 107. The mental health counselor opined that the individual does not have an addictive sexual behavior. Id.at 110. Rather, she views his behavior as an outgrowth of anxiety. Id. She believes that the individual’s “sexual acting out” can be linked to major stressors in the individual’s life and in his two marriages. Id. at119. The last time he visited a lotion parlor in June 1999, for example, was linked to stress involving a disagreement with his girlfriend. Id. at 106. When questioned whether she ever saw anything during the course of her counseling with the individual to indicate he should be referred for treatment of paraphilia, the mental health counselor responded negatively. Id. at 128. She added that with respect to Criterion A, most healthy adults have recurrent, intense, sexually arousing fantasies, sexual urges, and behavior. Id. at 131. Therefore, she implies that Criterion A must be further defined to avoid encompassing most of the population. Id.

The mental health counselor further opined that the odds of the individual reverting to his old behavior “have been minimized.” Id. at 120. She cites the individual’s committed, intimate relationship with a woman since 1996 as one reason for her opinion. Id. at 105. She notes also that his use of the 12-step programs (AA, SA, and SLAA) are very beneficial to him. Id. at 112.

4. Finding Regarding the Individual’s Mental Health

It is my opinion that irrespective of the divergent views of the two board-certified psychiatrists and the mental health counselor, the individual does have a “mental condition of a nature which . . . causes, or may cause, a significant defect in judgement and reliability,” within the meaning of section 710.8(h). While I find there is ample evidence to support the broad-based diagnosis of Paraphilia NOS, I am not convinced I need to reach an affirmative finding on the specific diagnosis in this case. See Personnel Security Hearing, Case No. VSO-0034, 25 DOE ¶ 82,768 (1995), aff’d (OSA 1995). Rather, I find sufficient for this determination under section 710.8(h) that the DOE consultant- psychiatrist has concluded the individual has some kind of mental illness and that the individual’s own mental health counselor diagnosed him with a mental disorder, Impulse Control Disorder (sexual acting out).

In evaluating the evidence in this case, I considered that the DOE consultant-psychiatrist has evaluated 500 to 770 persons with paraphilia, 20-25 of whom presented with the same sexual pattern as the individual, i.e., compulsively going to prostitutes despite it causing clinical distress in the person’s lives. Tr. at 167. I balanced the DOE consultant-psychiatrist’s expertise in treating paraphiliacs against the fact that he only interviewed the individual for a one-hour period. I also considered the DOE consultant-psychiatrist’s testimony that Paraphilia NOS is not “a perfect fit” for the individual’s mental illness, but it is the closest fit for the individual’s problem. Tr. at 167.

As for the Forensic Psychiatrist, I was not convinced by his opposing expert testimony for the reasons set forth in Section IV.A.2 above. At the hearing, I asked the Forensic Psychiatrist if he had discerned during his evaluation of the individual whether the individual had any mental illness. Tr. at 161. The Forensic Psychiatrist responded, “I . . . wasn’t asked to address it because [the individual’s counsel] specifically wanted me to address this issue, presence or absence of paraphilia, . . . one of the things we learn in forensic psychiatry is never answer questions you haven’t been asked.” Tr. at 161. When pressed further about the issue, the Forensic Psychiatrist only offered that it is possible the individual might have an adjustment disorder but he was not sure. Id. Although it did not affect my conclusion in this case, after observing the Forensic Psychiatrist’s demeanor and noting the caution with which he responded to questions, I questioned whether he could have offered more insights into the individual’s mental health than he volunteered.

In the end, I was convinced from a careful review of the record that the individual suffers from a mental illness that causes a significant judgment in his judgement and reliability. It is interesting to determine, but not critical; and ultimately irrelevant whether that mental illness is Paraphilia NOS and/or Impulse Control Disorder (sexual acting out) and/or Major Depressive Disorder, Recurrent, In Partial Remission. Ultimately, the record suggests that the individual’s mental health problems are multifaceted and subject to various and sundry diagnoses.

5. Finding With Respect to the Individual’s Judgment and Reliability Under Criterion H

The DOE consultant-psychiatrist affirmed at the hearing that the individual’s mental condition causes or may cause a significant defect in his judgment and reliability. First, he explained that the individual’s defect in judgment and reliability stems from his repeated involvement in illegal conduct in which he constantly exposed himself to physical danger, and his financial irresponsibility.(9) Second, he related that in deciding whether the individual’s defect was significant, he devised his own definition of the term since the Part 710 regulations do not define it. Under his definition of “significant,” the DOE consultant-psychiatrist looked at whether the defect would lead to, or has led to, behavior in which someone could get, or got seriously hurt; or whether the defect leads to behavior that could directly affect national security. Ex. C at 29-30; Tr. at 297-98.

According to the DOE consultant-psychiatrist, the individual’s defect in mental condition has not yet, nor will it lead in the future to behavior in which someone will be seriously hurt. Id. While acknowledging that the individual could have been robbed or killed by street prostitutes or contracted HIV or other sexually transmitted diseases, the DOE consultant-psychiatrist nevertheless believes these risks alone are not enough for him to opine that the individual’s defect in judgment and reliability is “significant.” Ex. C at 30.(10)

Regarding the issue whether the individual’s behavior could directly affect the national security, the DOE consultant-psychiatrist consulted a personnel security specialist for her expert opinion. Id. The DOE consultant-psychiatrist explained that he is not an expert in national security matters and not qualified to opine about such matters. Id. After a DOE personnel security specialist expressed her opinion to the DOE consultant-psychiatrist that the individual’s behavior is a security concern irrespective of any mental illness the individual may have, the DOE consultant-psychiatrist decided the individual’s defect was “significant” for purposes of Part 710.

The DOE consultant-psychiatrist, by crafting the definition of “significant” that he did, placed himself in the untenable position of having to rely on a security expert to render a determination regarding the importance of the individual’s defect in judgment and reliability. In my opinion, it would have been preferable had the DOE consultant-psychiatrist been able to decide whether with individual’s defect was significant on his own accord. However, I recognize the challenges posed by the Part 710 regulations for medical professionals. It is as though medical professionals are called upon to render a legal opinion after deciding the medical question of whether a person has a mental illness or condition that might affect his judgment and reliability.

In the final analysis, while I might have reached the same conclusion based on a different rationale had the regulations permitted me to do so, I am satisfied that the DOE consultant-psychiatrist had sufficient bases to support his conclusion that the individual’s mental illness causes, or may cause, a significant defect in his judgment and reliability.

6. Evaluation of Mitigating Factors

The individual testified that he has been working with his AA sponsor on his sexual issues since 1995 and his mental health counselor since 1997. Id. at 260. In the individual’s opinion, the mental health counselor has helped him quite a bit with the treatment of his sexual issues (she reviews his journal entries and reading material with him). Id. at 105, 267-68. He also claims that he has lost “his desire to have outside sexual activities of any illicit nature, whether it’s paid-for-sex, or some sort of affair, or a casual “one-nighter” because of the severe consequences these activities are having on him. Id. at 266. The individual also related that he no longer thinks it is morally appropriate to engage in commercial sex. Id. at 273. Under questioning, the individual explained that his moral awakening was linked to his return to organized religion. Id. at 289. The individual also testified that he is working with someone from SA on his sexual issues, although he revealed that he no longer attends SA meetings. Id. at 286-87. Regarding his future intentions, the individual testified he has an AA sponsor to whom he is accountable, he will continue with his “journaling” activities, and will seek help from God. Id.

One of the individual’s former co-workers and fellow AA member testified that he sees the individual at AA two to three times each week. He expressed his opinion that the individual is motivated in the 12-step program and that AA can be used to combat any addictive behavior, including the individual’s sexual issues. Id. at 240-45.

As for the mental health professionals’ opinions regarding the individual rehabilitative efforts and prognosis, the mental health counselor testified that the individual’s behavior has gotten progressively better, and that the odds of his reverting to his old behavior have been minimized. Id. at 107, 120. The DOE consultant-psychiatrist opined that the individual’s risk of a relapse is 50% less with treatment for his sexual issues. Id. at 292. He questions, however, whether AA is preferable to SA or SLAA. Id. He believes that the individual is partially rehabilitated from his mental illness and that he will need two to three years of abstinence to be considered fully rehabilitated. Id. at 294. He concluded that the individual’s sexual behavior is a chronic problem for which he will need lifetime maintenance. Id.

Based on all the evidence in record of this case, I find that the individual has not mitigated the security concerns connected with his mental illness. The individual’s mental illness, whether it is characterized as Paraphilia NOS, Impulsive Control Disorder NOS (sexual acting out), or Major Depressive Disorder, Recurrent, appears to have been present most of his adult life. By his own account, the individual has repeatedly obtained commercial sex from a variety of sources, both legal and illegal, for 25 years. While the individual explains some of his behavior as an outgrowth of stress related to the death of his parents, two failed marriages, and other stressors in his life, I cannot find that his mental illness is linked to “temporary” conditions that have been resolved. In fact, the illness seems more accurately characterized as a chronic one based on the behavioral pattern in the record.

As for the individual’s rehabilitative efforts to date, I am unconvinced they are sufficient in duration or intensity for me to conclude that his mental illness is no longer a security concern. The risk of a relapse is far too high, in my opinion, to support a recommendation in favor of restoring the individual’s security clearance. With regard to the counseling the individual has received from his mental health counselor, I note that he has attended only 10 therapy sessions in a three-year period. Given the frequency with which the individual engaged in his illicit sexual activities, (11)I am surprised he did not desire more regular therapy to address his compulsive behavior. Furthermore, I find it significant that the individual has no fixed schedule for future visits with his mental health counselor; rather he intends to visit her when he feels a need to discuss issues. In view of his previous failed attempts to address his sexual issues, the potential lack of regular contact with a mental health professional causes me to have concerns whether he will be successful in achieving complete rehabilitation.

While I applaud the individual’s attendance at AA, I like the DOE consultant-psychiatrist, question whether he would be better served participating in a self-help program with others who have sex problems like SA and SLAA. This is particularly true in view of the testimony of the former co- worker and AA colleague who revealed that when he learned about the individual’s visits to prostitutes he told the individual, “I thought it was probably a cost-effective way to get sex, if that’s what he was after, cheaper than a movie, and so on and so forth.” Id. at 243. This is not the kind of comment I would expect from a person trying to help someone combat a compulsion for obtaining commercial sex. Finally, I note that there was expert psychiatric testimony in another administrative review hearing that it is difficult for a person attending SA to mislead the group about that person’s efforts towards sexual sobriety because SA members are “ruthless toward people who come and lie.” Personnel Security Hearing, VSO-0034, 25 DOE ¶ 82,768, n. 8 (1995) (affirmed by OSA, 1995). Assuming this statement is universally true for all SA groups, it would appear that the individual might benefit more from the accountability to a SA group than an AA group.

I am also not convinced that the individual will refrain from his sexual behavior during future periods of stress in his life. It was most telling that his last visit in June 1999 to a massage parlor coincided with a disagreement he had with his girlfriend. Also, the individual has tried to arrest his behavior many times in the past without success. He reported that he attended SA and SLAA from 1986-88 and began attending AA in 1995. It is clear that despite these past efforts, the individual was unable to control his behavior. To be sure, the individual will need enormous willpower to continue his struggle with his sexual issues. He has not convinced me, however, that he has either the willpower or a structure in place to help him foster that willpower.

In the final analysis, the individual has not demonstrated to my satisfaction that he will not engage in the offending behavior again. Therefore, at this time I find that the risk of a relapse for this individual is simply too high for me to find he has mitigated the DOE’s Criterion H concerns.

B. Criterion L

Next, I am called upon to consider whether the circumstances presented in this case “tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of national security.” 10 C.F.R. § 710.8(l).

There is no dispute that the individual engaged in illegal activity every time he solicited a prostitute over the last 25 years. The record also suggests that the individual may have engaged in some illegal sex activity with massage parlor attendants during various times in this period as well. Tr. at 274-75, Ex. I at 179. The individual also testified that he is aware from reading the newspapers that some massage and lotion parlors in the city where he resides have been charged with violating the law. Tr. at 288.

The totality of the evidence in this case compels me to find that the DOE properly invoked Criterion L because the individual’s past sexual conduct raises serious questions about his judgment, reliability, and susceptibility to undue influence. The individual has regularly engaged in illegal criminal activity most of his adult life. Until very recently, it appears he was unable to control his pattern of compulsive high-risk sexual behavior. Moreover, the individual has exhibited exceedingly poor judgment as exemplified by his decision to visit massage/lotion parlors after the DOE conducted the 1997 and 1999 PSIs. The individual knew or should have known after the 1997 PSI that the DOE had security concerns about his sexual behavior. It is equally disturbing that the individual repeatedly engaged in illegal behavior with impunity over a period of 20 years while holding a security clearance. Also, even though the individual was attending two self-help groups for persons with sex problems, SA and SLAA, he consciously chose to engage in behavior not condoned by those groups. Finally, even if I accept as true the individual’s testimony that his most recent visits to massage/lotion parlors involved “talking and holding,” not sex, I would have to conclude that the individual exercised extremely poor judgment in placing himself in situations where he might be tempted to engage in the precise illegal behavior he is allegedly working to avoid. The cumulative effect of the poor choices leads me to find unequivocally that his judgment and reliability are highly questionable.

While the individual has been very open about his past sexual escapades to his co-workers (Tr. at 231, 239), his girlfriend (Id. at 266-67) and to his self-help groups (Id. at 112), he did admit at the hearing that prior to his reinvestigation in 1997, he did not want the DOE to know about his sexual activities. Tr. at 276. His mental health counselor also revealed the individual has not told his two teen-age sons about his sexual issues and that it would be very painful for them to find out. Id. at 112. The individual confirmed he has not told his sons about his problems on the advice of his therapist. Id. at 270. The individual claims he would tell the sons if someone were to attempt to blackmail him with the information.

In considering whether the individual has mitigated the security concerns under Criterion L, I accorded great weight to the long-term nature of the individual’s paranormal sexual behavior. I also heavily weighed the fact that the individual is not rehabilitated from the mental illness that apparently causes him to engage in this behavior. In addition, the individual did not convince me on two important points: (1) that he will not resort to the same sexual behavior when confronted with stress (see Section IV. 6 above), and (2) that he will reveal his past transgressions to his sons if faced with blackmail. Regarding the second point, the record reveals that the individual is devoted to his sons. He has worked a second job in order to send them to an exclusive private school. Tr. at 228. In fact, he revealed that he reconsidered and rejected killing his first wife and committing suicide in 1992 when he realized the devastating effect it would have on his two sons. Ex. I at 84-85. I am concerned from the record that the individual might consider the psychological well-being of his sons above that of national security if someone were to threaten to reveal his extensive sexual transgressions to his sons.

Even if I were to conclude that the individual would readily divulge his past sexual behavior to his sons if confronted by blackmail, there is still a security concern that if I recommend restoring the individual’s access authorization, the individual might be subject to pressure in the future. Since the individual’s clearance and job are in jeopardy, it is possible that the individual would be vulnerable to pressure from someone who threatened to report future sexual conduct to the DOE. See Personnel Security Hearing, Case No. VSO-0084, 26 DOE ¶ 82,754 (1996)(affirmed by OSA, 1996) (voyeurism and exhibitionism remain viable future security concerns even when the person did not hide the facts surrounding his sexual problems). The chance of this happening may be remote, but as the Personnel Security Specialist testified, the risk of exploitation is certainly much greater for this individual than for a person without his mental condition and his history of illegal sexual behavior. Tr. at 192.

In reaching my conclusion regarding Criterion L, I also considered the testimony at the hearing that the individual has been diligent in handling classified information (Tr. at 229-30) and that he produced high quality work (Tr. at 240). In addition, I considered the professional certifications and the three exemplary performance appraisals the individual received for the years 1997 to 1999. Ex. 4. I noted, also, the recognition awards, the team performance awards, and other job-related commendations that the individual has received during his employment tenure. Exs. 5, 6, 7. This evidence suggests to me that the individual’s mental illness and sexual behavior do not appear to have affected his ability to perform his job responsibilities to date. The fact that this has not occurred in the past is no guarantee that it will not occur in the future, however. See Personnel Security Hearing, Case No. VSO-0200, 27 DOE ¶ 82,770 (1998) (affirmed by OSA, 1998) (fact that alcohol consumption has not affected job performance in the past does not mean it will not affect it in the future).

After considering the evidence in the record, it is my opinion that this individual’s access authorization should not be restored because there is an unacceptably high degree of risk that he might be subject to pressure, coercion, exploitation or duress.

V. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R.§ 710.8(h) and (l) in suspending the individual's access authorization. I further find that the arguments advanced by the individual in his defense do not mitigate the security concerns accompanying those criteria. In view of Criteria H and L, and the record before me, I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, in my opinion, the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that either the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). Submissions must be served on the Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD. 20874

Ann S. Augustyn

Hearing Officer

Office of Hearings and Appeals

Date: May 11, 2000

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to from time to time in this Opinion as access authorization or security clearance.

(2)The DOE consultant-psychiatrist also explored a number of other issues during his examination of the individual. With regard to the individual’s past usage of alcohol, the DOE consultant-psychiatrist opined that the individual has shown adequate evidence of rehabilitation from alcohol abuse. As for the individual’s past outbursts of anger, the DOE consultant-psychiatrist concluded that the outbursts were not attributable to an underlying mental illness such as Antisocial Personality Disorder, Borderline Personality Disorder, or Intermittent Explosive Disorder. Finally, the DOE consultant-psychiatrist dismissed concerns about possible depression in the individual, finding that any depression the individual is experiencing is probably related to an out-of-control paraphilia, financial difficulties and family problems. Ex. C at 27.

(3)Criterion H concerns information that a person “has an illness or mental condition . . . which, in the opinion of a board-certified psychiatrist . . . causes, or may cause, a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h). Criterion L relates, in relevant part, to information that a person has “engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of national security.” 10 C.F.R. § 710.8(l).

(4)The individual admitted during the 1997 PSI that he did not take any precautions during his sexual encounters to prevent the contraction or transmission of sexually transmittable diseases. Ex. I at 173.

(5)The individual claims that these periods of so-called “abstinence” are evidence he was trying to change his behavior. Tr. at 253. I note, however, that the individual’s own psychiatrist opined that the individual used massage parlors less during the time period in question because he was able to obtain sexual liaisons through dating. Ex. 3.

(6)At the time of his evaluation, the Forensic Psychiatrist had reviewed numerous documents relating to the individual, including the following: the DOE consultant-psychiatrist’s Report, the transcripts of the 1997 and 1999 PSIs, Counseling Records from the individual’s mental health counselor for the period 1997-1999, the Notification Letter, EAP records from 1995-1998, a book chapter on Paraphilia co-authored by the DOE consultant-psychiatrist, and a book entitled, Lovemaps:Clinical Concepts of Sexual/Erotic Health and Pathology, Paraphilia, and Gender Transposition in Childhood, Adolescence and Maturity, written by John Money, Ph.D.

(7)The DOE consultant-psychiatrist also suggests that an alternate way of looking at the individual’s behavior is to call it a “nonparaphilic sexual addiction (NPSA).” Ex. C at 28; Tr. at 84-85. At the hearing, the DOE consultant-psychiatrist testified that NPSA might be broadly considered a mental condition but he could not consider it a mental illness because the condition has not been studied enough. Id.

(8)Forensic Psychiatry is a “subspecialty of psychiatry that deals with the application of psychiatric information and knowledge to answer and deal with legal issues.” Tr. at 159.

(9)The record does not contain sufficient evidence for me to conclude that the individual was financially irresponsible. I note that the DOE explored the individual’s financial problems in depth over the last ten years, but did not include a charge of financial irresponsibility in the Notification Letter.

(10)I was quite surprised that the DOE consultant-psychiatrist does not consider as “harm to oneself and others” the possible contraction and spreading of potentially fatal sexually transmitted diseases such as AIDS, a danger in this case. In fact, it was the DOE consultant-psychiatrist who revealed at the hearing that a high percentage of the prostitutes in the city where the individual resides are heroin addicts who are HIV positive and Hepatitis C carriers. Tr. at 43. Given that the individual has engaged in unprotected sex for a significant period of time, I would have expected the DOE consultant-psychiatrist to find that the individual’s long-term risky, cavalier sexual behavior in which the individual has exposed himself and his sex partners to serious health risks, including death, would rise to the level of a significant defect in judgment and reliability. However, since it is the medical professional under Criterion H who renders an opinion regarding the severity of a person’s defect in judgment and reliability, I cannot and, will not, substitute my lay opinion on this matter.

(11)According to the individual, he last used the services of a prostitute in 1997. He implies he has not engaged in illegal sex activities since that time. I was not convinced, however, that his three visits to massage/lotion parlors between 1997 and 1999 did not involve sexual activities. It seemed curious to me that one would go to one of these establishments for “conversation and to be held.”