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Can You Use a Sex Addiction as a Mitigating Factor?

Posted by Ronald D. Hedding | Apr 12, 2024

The term “sex addiction” describes a wide range of behaviors that involve compulsive sexual behavior, such as an addiction to pornography. The opinions on whether it can be used to explain and mitigate illegal sexual conduct are mixed.

Can You Use a Sex Addiction as a Mitigating Factor?
A sex addiction might be considered as a mitigating factor for a lighter sentence.

This condition has sometimes been used as a successful mitigating factor but has also been rejected for lack of scientific evidence. In other words, there is much uncertainty surrounding the diagnosis of sexual addiction and how the legal system has interpreted it.

A mitigating factor, or extenuating circumstance, is any fact or circumstance that lessens the defendant's severity or culpability of a criminal offense, which can affect their sentence after a conviction. 

A sexual addiction is inappropriate or excessive sexual behaviors that lead to subjective distress or impairment in someone's life. Other terms for sex addiction include hypersexual disorder, nymphomania, and compulsive sexual behavior. 

A sexual addiction covers a broad range of behaviors, primarily by men, such as any of the following acts:

  • Compulsive masturbation,
  • Compulsive pornography use,
  • Casual or anonymous sex with strangers,
  • Multiple sexual partners,
  • Paying for sex,
  • High masturbation frequency.

Notably, these conditions are often associated with someone having a bipolar or personality disorder

A “compulsive sexual behavior disorder” is defined as a disorder “characterized by a persistent pattern of failure to control intense, repetitive sexual impulses or urges resulting in repetitive sexual behavior” and is classified as an impulse control disorder.

Regardless of the uncertainties of this condition, sexual addiction has been used as a defense in some criminal court cases. It will typically involve expert witness testimony or reports, along with a diagnosis of sexual addiction from a medical professional. Defendants are often habitual criminal sexual offenders.

What is a Habitual Sex Offender?

California Penal Code 667.71 PC imposes a sentence of 25 years to life in prison for habitual sex offenders. It's defined as a person who was convicted of certain sex crimes and then convicted again later of the same sex crime or another qualifying sex offense.

PC 667.71 habitual sexual offender law applies to numerous sex-related crimes, such as the following:

When someone is convicted of a California crime, the statute often describes the maximum possible penalty. Judges determine an appropriate sentence based on the facts and circumstances of the case. At a sentencing hearing, the prosecutor and defense can present evidence for the judge to consider before imposing a sentence. 

Evidence that could increase the defendant's sentence is called an aggravating factor. Evidence that could decrease (leniency) a defendant's sentence is called a mitigating factor.

What is a “Mitigating Factor?”  

Simply put, a “mitigating factor” can be presented to the court to get a more lenient sentence for a convicted defendant. The judge assesses each case individually to impose an appropriate and just penalty. 

Suppose two people commit the same sex crime separately. In that case, the judge considers several factors and circumstances before imposing a sentence. Now, suppose both defendants have different levels of culpability or criminal histories. In that case, the judge will likely impose different sentences. 

For example, a first-time sex offender will be treated differently than someone with prior sex crime convictions. Thus, a defense lawyer must present mitigating factors to the judge for habitual sex offenders or a defendant with a previous conviction. 

The specific factors that could be considered for mitigation are typically related to the offense or the defendant and found in the California Rules of Court, Rule 4.423(a), circumstances in mitigation include the following: 

  • Evidence that the defendant was a minor actor in the crime.
  • Evidence that the defendant was a passive participant in the crime.
  • Evidence that the victim was an aggressor, provoker, or initiated it.
  • Evidence that the victim willingly participated in the incident.
  • The crime occurred in a circumstance that is unlikely to be repeated.
  • Defendant was coerced, induced, or was duress.
  • Defendant suffered abuse by the victim of the crime.
  • Defendant is a first-time offender or has a minimal prior criminal record.
  • Defendant suffered from a mental or physical condition.
  • Defendant experienced psychological, physical, or childhood trauma, including abuse, neglect, exploitation, or sexual violence, and it was a factor in the commission of the crime.
  • The commission of the current offense is connected to the defendant's prior victimization, childhood trauma, or mental illness.
  • Defendant is or was a victim of intimate partner violence or human trafficking at the time of the offense, and it was a factor in the commission of the offense.
  • Defendant was under 26 years of age at the time of the offense.
  • Defendant was a juvenile when they committed the current crime.
  • Defendant cooperated and took responsibility early in the prosecution.
  • Defendant would be granted probation if eligible.
  • Defendant paid any owed restitution to the victim.
  • Defendant's prior probation or parole history proves they would be successful again if given the opportunity.
  • Application of an enhancement could result in a sentence over 20 years.
  • Application of an enhancement could result in a discriminatory racial impact.
  • An enhancement is based on a prior conviction over five years old.

Under Rule 4.423(c), the court can also review any other factors for mitigation allowed by statute or that reasonably relate to the case. Sex crime defendants are responsible for demonstrating how a factor reasonably relates to the case and why it should be considered a mitigating factor if it's not listed under the rules. 

How Is Sex or Pornography Addiction a Mitigating Factor?

Suppose a criminal case is related to violating a sex crime law. In that case, the judge MIGHT use evidence of a sex or pornography addiction as a mitigating factor by a judge. 

Often, the mitigating factor will be related to a defendant's mental health. Simply put, just claiming a defendant has sex or pornography addiction is insufficient to make any difference at the sentencing hearing.

Thus, before making addiction claims at sentencing, there must be an evaluation and plan by a mental health professional. When sex crime defendants demonstrate a proactive approach toward rehabilitation, a judge is more likely to consider mitigating factors, such as the following:

  • Participate in counseling,
  • Taking prescribed medications and
  • Showing a willingness to follow court orders.

Notably, judges might view conduct from addiction as an aggravating factor at sentencing if a defendant has repeatedly failed to take any action to get their addiction under control. 

If you are accused of violating Penal Code 667.71 habitual sex offender law, you will need a defense lawyer to challenge the allegations. Perhaps we can convince the district attorney to reduce or dismiss a charge. Perhaps we can argue there was no probable cause, the confession was coerced, or you were wrongfully arrested and falsely accused.

Perhaps we can argue that you were detained or arrested without probable cause. If so, the judge could exclude any evidence gathered from the case. Often, this will force the prosecution to reduce or dismiss the charges. Contact us for a free case evaluation. The Hedding Law Firm is based in Los Angeles, CA. 

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Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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