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February 8, 2010

"New legal issue: Payment for child porn victims"

The title of this post is the headline of this new AP piece, which effectively reviews the robust legal and policy debates over whether restitution orders should be a big part of federal child porn sentencing proceedings.  Here are excerpts:

The issue of criminal restitution in child pornography possession cases emerged last February in Connecticut when a federal judge said he would order a man convicted of possessing and distributing child pornography to pay about $200,000 to Amy.  The judge said it was the first criminal case in which someone convicted of possessing illegal images — but not creating them — would be required to pay restitution.  (The case settled for $130,000 before the judge issued his final order.)

Since then, requests for restitution have picked up as more victims are identified — and as a couple of victims, including Amy, have hired attorneys, said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland, Ore.

Hundreds of requests have been filed nationwide, most of them by Amy's attorney, James Marsh of New York.  Marsh said that as recently as five years ago, restitution would have been impossible because victims wouldn't have known when someone was caught with an image of them. The Crime Victims Rights Act of 2004 set up a system for notifying the victims.  Now, Marsh gets several notices a day on behalf of Amy.

Marsh, who declined to make Amy available for an interview, is seeking restitution for Amy in 350 cases nationwide. Each request is about $3.4 million. She won't get that amount in every case. But any sum collected would go toward that total to cover Amy's counseling, medical costs, future lost earnings and lawyer fees.

Courts have been divided on how to handle the requests. At least two courts in Florida ordered restitution of more than $3.2 million, but some others ordered nominal amounts. Several others denied it. "Everyone is really grappling with this in good faith," said Marsh. "It's all over the place."...

Some defense attorneys have argued that children are not victimized by mere possession of pornography or that their client had no direct connection to the victims. Others have argued it's impossible to fairly calculate how much harm one offender caused the victim.

After a federal judge in Florida found Arthur Weston Staples III, of Manassas, Va., jointly liable for $3.5 million in restitution for having an image of Amy, Staples' attorney, Jonathan Shapiro, argued on appeal that there was no connection between the two "other than the fact that he possessed her image on his computer approximately 10 years after that image had been manufactured by her uncle ... who caused her extreme damage."   Prosecutors should have to prove that Amy was a victim of Staples' particular act, and that she would not have been harmed if Staples hadn't had the image, Shapiro argued.  The appeal is pending.

A federal appeals court recently upheld a Texas judge's decision to deny restitution because prosecutors didn't show how much harm the specific defendant caused.  The ruling in the 5th U.S. Circuit Court of Appeals drew a sharp dissent from Judge James Dennis.  "Her right to restitution is not barred merely because the precise amount she is owed (by this defendant) is difficult to determine," Dennis wrote. 

Other defense lawyers have said restitution requests belong in civil court.  Bradford Colbert, a William Mitchell College of Law professor, agreed. "It just isn't appropriate for criminal court to make those determinations," he said. "This is the type of thing that should be resolved in a civil lawsuit. You get convicted of a crime and you get sued by a victim, and there's a civil lawsuit where you pursue damages."

Marie Failinger, a Hamline Law School professor, said allowing restitution in criminal cases is important because many victims don't have the resources to pursue civil cases.  She predicted it would take three to five years for courts to figure out a consistent way to handle requests for criminal restitution.

Meanwhile, victims' advocates see criminal restitution as one more tool for fighting child porn. "The people who engage in this stuff need to be held accountable, even if they are not the person who is raping the child," said Ernie Allen, president of the National Center for Missing and Exploited Children. "People who are distributing this stuff, people who are downloading this stuff — when they do that, there's a victim, and there's a real harm."

Regular readers know that I have been covering this "new legal issue" closely every since the Feb 2009 ruling in Connecticut referenced above (and blogged here).  Below are just a few of my old and new posts on this important and dynamic topic:

UPDATE:  A helpful reader reader has reminded me that the Fifth Circuit ruling referenced in the AP article is somwhat hard to find.  I fear that the ruling in In Re: Amy, No. 09-41238 (5th Cir. Dec. 21, 2009), does not appear on Lexis, but I think it is available via Westlaw at 2009 WL 4928376.  Even better, I believe everyone can access thise this mandamus ruling from the Fifth Circuit at this link thanks to the bloggers at The Volokh Conspiracy.

February 8, 2010 at 10:53 AM | Permalink

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Comments

On the 5th circuit dissent, I thought the entire point of restitution orders is that they are only appropriate under the various statutes when the amount is in fact relatively easy to determine. And given that these cases appear to be much more in line with future harm theory rather than recovering something already lost I have more problems than just the proximate cause angle.

"Restitution" makes me think strictly of replacement of what has already been lost. An emblezzler has stolen etc, or even the accounting costs required to figure out exactly how much was stolen. Restitution does not seem at all an appropriate characterization for the cost of on going care for the invalid hit by a drunk driver and these child porn trauma cases seem much more akin to that.

It will be interesting to see what SCOTUS says about such orders if it ever gets around to noticing them. They certainly seem keen on avoiding other issues cropping up around sex offenders lately like residency restrictions. Many states are now a far cry from having just the registries that were held to be non-punative.

Posted by: Soronel Haetir | Feb 8, 2010 12:57:02 PM

how true. What they have now is actualy a direct violation of that only supreme court rule. They have become basically an illegal after the fact lifetime parole.

Posted by: rodsmith3510 | Feb 8, 2010 2:02:47 PM

If the lawyer has not obtained an IRS opinion letter about the taxation of restitution payments, there is not informed consent of the client. That may be lawyer malpractice. I encourage all child porn victims collecting restitution to consult a lawyer malpractice specialist to sue their lawyers for lawyer malpractice unless a full discussion of the tax implications took place, and unless a clear IRS opinion letter treats this payment as tax exempt.

http://www.irs.gov/publications/p525/ar02.html#en_US_publink1000229492

Go to "Other Income," then to "Court Awards and Damages."

If the IRS rules there was no physical injury, only a dignitary insult, and the gross sum is taxable, the child porn victim may actually lose money on the restitution. Say, the lawyer takes a third payment on a verdict of $120,000, that means the victim gets $80,000. Say expenses are $30,000. That means the net pay is $50,000. If the tax is on the full $120,000, the marginal tax rate on an additional $120,000 income may be up to 50% after federal, state, and local taxes add up. The tax debt may be $60,000, when the net pay may be $50,000.

Why won't the lawyer follow up on that story?

Because this scam is not about victim restitution. It is about lawyer land piracy. If the lawyer gets his, the victim is on her own.

Posted by: Supremacy Claus | Feb 9, 2010 11:48:36 PM

i will have to agree with SC here.

Posted by: rodsmith3510 | Feb 10, 2010 4:22:07 PM

Very good post. Made me realize I was totally wrong about this issue. I figure that one learns something new everyday. Mrs Right learned her lesson! Nice, informative website by the way.

Posted by: supra shoes | Nov 11, 2010 1:49:32 AM

The money to be paid for the victims will never be enough for all the damaged caused by the criminals.

Posted by: Christopher Taylor | Oct 12, 2012 3:32:44 PM

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