August 7, 2012
"Child Pornography and the Restitution Revolution"
The title of this post is the title of this new paper by Cortney Lollar now available via SSRN. Here is the abstract:
Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution.
Traditional restitution is grounded in notions of unjust enrichment, and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach to restitution amounts to a criminal version of damages for pain and suffering and loss of enjoyment of life. To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography. Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography.
Rather than restoring victims and encouraging them to move forward with their lives, restitution roots victims in their abuse experience, potentially causing additional psychological harm. Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance. This Article calls for an end to the restitution revolution, and proposes several alternative approaches that better identify and address the consequences of child pornography.
August 7, 2012 at 04:43 AM | Permalink
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Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography.
Posted by: Guy | Aug 7, 2012 11:00:15 AM
If we're going to talk about giving child porn victims restitution, then let's include requiring the govt. to pay restitution every time they send a letter notifying a victim that they found someone else with their picture.
As far as damage to the victim, the govt. is doing more harm than the viewer.
Posted by: Manny | Aug 7, 2012 3:22:05 PM
if i was one of them...i'd sonner spend TRIPLE any award amount aranging the murder of the Lawyer going after the funds in the first place!
Posted by: rodsmith | Aug 7, 2012 4:12:03 PM
The gov doesnt really care who wins or looses I think. People who comit the crime should be punished to the highest degree!!
Posted by: dill | Aug 13, 2012 11:27:10 PM