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August 11, 2010

Another significant federal child porn restitution decision from NDNY district court

Regular readers know that the issue of whether child porn downloaders should have to pay restitution to the victims portrayed in the pictures they possess has divided federal district courts.  Another such decision and its import is highlighted in this new New York Law Journal piece, which is headlined "Online Viewer of Child Pornography Ordered to Pay Restitution to the Victim: Courts nationwide have split over requiring restitution for child pornography victims who did not know their pornographers or those who viewed the images."  Here are excerpts:

A man caught with pornographic images of a girl being sexually abused by her uncle has been ordered to pay restitution of nearly $50,000 to the victim, even though the defendant was a viewer of illegal images collected from the Internet who has never met the uncle or the girl.

Northern District of New York Judge Gary L. Sharpe decided that a mere "consumer" of child pornography is culpable to some degree for the emotional and psychological damage suffered by sex abuse victims under 18 U.S.C. §2259(b)(1), which allows awarding compensation for the "care required to address the long term effects of their [victims'] abuse."

While federal courts, including those in the 2nd U.S. Circuit Court of Appeals, have upheld restitution in instances where contact between children and their abusers provided the requisite causation under U.S.C. §2259, a "more difficult question" for federal courts has been in cases involving the absence of direct causation between a victim's injuries and a pornographer's actions, Sharpe ruled in United States v. Aumais, 08-cr-711.

His Aug. 3 decision affirmed in full a report, recommendation and order from U.S. Magistrate Judge David R. Homer that directed payment of $48,483 for future psychological counseling to the victim identified as "Amy," who was abused between the ages of 4 and 8. The magistrate judge said the matter was a case of first impression in the 2nd Circuit....

Gene V. Primomo, an assistant federal public defender, said Tuesday he has filed notice that he will appeal Sharpe's determination to the 2nd Circuit. He said the ruling is potentially a "huge" one for both the defense and the prosecution in child pornography cases, given the wide electronic capability of disseminating illegal images and improving technology to trace when images are downloaded....

Before sentencing, the U.S. government sought restitution for Amy, a request that was joined by her attorney, James R. Marsh. Marsh said authorities have now interceded in more than 500 cases seeking restitution for Amy. Under the federal Crime Victims' Rights Act of 2004, government prosecutors in most cases must pursue restitution claims if children who are victims of sex crimes request they do so.

"We're very happy with this decision," Marsh said Tuesday. "The magistrate judge made a very well-reasoned analysis of the proximate cause issue. We were disappointed about his finding on the future wages issue." Told of Primomo's plan to appeal, Marsh, who has expanded his New York firm to deal with child pornography restitution cases, said he welcomed the appeal.

Some related recent federal child porn restitution posts:

August 11, 2010 at 12:02 PM | Permalink

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Comments

why is it that the conservatives who rant and rave about joint and several liability in personal injury cases are no-shows when it's applied to really tenuous cases?

Posted by: . | Aug 11, 2010 1:24:53 PM

The links require that one be a subscriber. Until rebutted, it should be presumed that the phrase, "case of first impression," is lawyer code for the emergence of a new law from the cloaca of an unaccountable judge, who knows nothing about the subject of the case, did no research, and couldn't care less. Presumption or not, rebuttal or not, it always means, new revenue stream for the CCE.

Did Amy testify that this dissemination and viewing injured her? Was the defendant allowed an opportunity to confront her and cross examine her therapist? Because this is a criminal case, doesn't the Sixth Amendment apply? If the depictions were of people in the India of the 1920's, and everyone were dead with 100% certainty would payment be due, and would it be sent to the heirs? This decision is the real payoff for the lawyer, confiscation of assets.

These confiscations are large for viewing moving pictures of an unrelated stranger. When it comes to the spreading of AIDS, sometimes intentionally, by homosexuals, assassinating millions of people, we hear nothing from the lawyer. This seems to be a pattern with the lawyer. Prohibit mildly deleterious marijuana, legalize massively damaging alcohol.

Posted by: Supremacy Claus | Aug 12, 2010 6:41:59 AM

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