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August 29, 2012

"Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"

The title of this post is the headline of this lengthy and effective new article in the latest issue of the ABA Journal.  Here is a small excerpt from a piece that merits a full read for any and everyone concerned with issues surrounding child porn sentencing or restitution punishment:

Under the Crime Victims’ Rights Act, the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images. Her attorney, James Marsh of New York City, says his office has received at least 1,500 required notices of federal prosecutions for possession of those images. “The day after we were retained in 2008, we had someone open up all these notices she received in the calendar years 2006 and 2007,” Marsh says. “It took two days just to open the envelopes.”...

The restitution portion of VAWA requires full compensation for victims’ losses, regardless of the defendant’s ability to pay. The D.C. Circuit noted this in April 2011 in U.S. v. Monzel, when it remanded a partial restitution order so the trial court could calculate “the full amount of the victim’s losses.”

However, the full-restitution requirement creates another problem with using VAWA in cases like Amy’s: how to split the restitution payment among all of the defendants who may be charged with possession of the same images. The act provides for joint and several liability among defendants in the same case, but what about defendants in multiple cases, in numbers nobody can predict? How should responsibility be apportioned between each of them, plus the original maker of the child pornography? And how can the justice system track what the victims actually receive?

Legal experts say there’s no precedent for these questions under VAWA or anywhere else in criminal law or in tort law. Several appeals courts have dedicated parts of their opinions to the problem, and federal district courts have struggled, with some developing a flat-rate scheme on their own. These include the Eastern District of California, which in three cases awarded $3,000 per victim, extrapolating from a provision in 18 USC § 2255 that minor victims of sexual exploitation may be deemed to have suffered civil damages no less than $150,000. In another case, a court in the Western District of Washington awarded $1,000 per image in U.S. v. Kennedy (later reduced to zero by the 9th Circuit at San Francisco).

Marsh says it’s his policy to file for full restitution—the full amount of Amy’s lost income, past and future psychiatric treatment, loss of enjoyment of life and attorney fees—in nearly every case, regardless of what other orders his client has received and regardless of the defendant’s means. He says Amy doesn’t care where the money comes from as long as she is made completely whole. He and Carol Hepburn of Seattle, Vicky’s attorney, argue that the system should not put the burden of working out these details on victims. Complicating matters further, Hepburn says, is the problem of collecting. “Just because an order is entered doesn’t mean one is going to get payment,” she points out. “In fact, I can remember early on a prosecutor telling me: ‘I got you a $10,000 order, but good luck getting anything because this guy’s going to get deported after he gets out of jail.’ ”

Even without immigration problems, defendants may have no money left after their defense, and no way of earning it while serving the long prison sentences typical in child pornography cases. Hepburn and Marsh say they receive some large checks as well as a few regular payments from prison wages. In some circumstances, particularly when the defendant is indigent, they may also work out arrangements with prosecutors or defense counsel.

August 29, 2012 at 08:23 AM | Permalink

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Comments

"the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images"

There's the problem right there.

Posted by: anon | Aug 29, 2012 11:05:39 AM

"He says Amy doesn’t care where the money comes from as long as she is made completely whole"

Should read.... "He said he doesn't care where the money comes from as long as he gets his cut and gets paid"

Posted by: anon | Aug 29, 2012 11:09:20 AM

The circuits have ruled (and the 5th circuit is reconsidering and likely will follow suit) that proximate cause is required. This is as it should be for the reasons those courts of appeals have given. And in any event, as alluded to in the article, determining restitution amounts from so many defendants to so many victims simply is unworkable regardless of causation, at least in strict child porn possession cases (child porn production cases, of course, inherently are different). Rather, if continued psychological harm from the knowledge that third-parties still are trading a victim's images is a major concern, then perhaps congress can create a special fund for offenders to pay into (akin to the nominal special assessment already ordered). that pool of funds could then be allocated to those victims who apply and qualify. much more feasible than seeking same through thousands of resitution orders (which likely will be uncollectable in vast majority of cases anyway as article also alludes).

Posted by: mark | Aug 29, 2012 2:13:51 PM

"if continued psychological harm from the knowledge that third-parties still are trading a victim's images is a major concern, then perhaps congress can create a special fund for offenders to pay into"

Or, Congress could just stop forcing further psychological trauma upon the victims by not requiring notification.

Posted by: anon | Aug 29, 2012 2:38:55 PM

I don't necessarily have a problem with putting judgments on multiple defendants across separate cases to make sure that she gets paid, because a lot of these defendants are going to be judgment-proof so it'll be a bit like squeezing water out of a stone.

What I do take issue with is the whole requirement of proximate causation in that did THIS defendant's actions cause her harm? It seems like, in the vast majority of cases, the answer has to be no. She is harmed by the knowledge that somewhere, out there, someone could possibly be viewing images of her abuse as a child but that the actual act of a defendant viewing those images does not cause her harm. It seems to me that the one she needs to collect from is the man who originally abused her and sent those pictures on to the WWW -- that being her uncle.

Posted by: Guy | Aug 29, 2012 3:24:34 PM

And, also, as anon posted, it seems at least arguable that the act of notification from the government would be at least as if not more traumatic than the act of someone viewing the image. Doesn't the continual re-notification force her to keep reliving that whole period in her life?

Posted by: Guy | Aug 29, 2012 3:33:03 PM

Would be curious to know what percentage of these 'restitutions' actually do eventually end up getting paid off in full or what the non-payment default rate in general is for court ordered restitutions as a whole are after all sentencing conditions have been met including fulfilment of parole conditions if there's still a remaining balance to be paid. Could wage garnishments really be enforced after full release and completion of sentence requirements. I suspect the percentage of 'walk aways' is probably quite high and not something that would be advertised by the DOJ in fear of influencing even more to default.

Posted by: Carl J. | Aug 29, 2012 4:42:24 PM

It seems kind of counterproductive in cases where the pictures were taken in exchange for money to the victim already. e.g. underage prostitution. It might even encourage the victim to distribute photos themselves.

Posted by: Kizzle | Aug 29, 2012 5:47:17 PM

Society here is also a victim of its own extremes. By making it nearly impossible for sex offenders to ever obtain employment, it all but ensures that most of these payments will never be made.

Posted by: Garvey | Aug 29, 2012 6:38:02 PM

After reading this article, my thought was that "Amy" should consider suing the federal government for intentional infliction of emotional distress, as it makes clear that the revelation of the existence of the photos, courtesy of the Rights Act that is mentioned, severely and permanently affected her, not the later disclosure that particular persons had viewed them. This harm is obviously foreseeable, and there's no doubt about proximate cause.

It seems unlikely that she would ever have discovered the images on her own. Worse, the article mentions that due to the internet the images will survive forever, so that the disclosure doesn't really serve any constructive purpose (e.g. it doesn't help in removing the photos). Saying that it provides her with restitution is perverse -- that is like hitting someone in the face and saying you did it for their benefit since you'll pay the full hospital bill and any lost wages.

Posted by: Rog | Aug 30, 2012 12:44:14 AM

...the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images. Her attorney, James Marsh of New York City, says his office has received at least 1,500 required notices of federal prosecutions for possession of those images. “The day after we were retained in 2008, we had someone open up all these notices she received in the calendar years 2006 and 2007,” Marsh says. “It took two days just to open the envelopes.”...

To expand on anon's point, these notifications are foreseeably upsetting. She may have been traumatized by the producer, but once, a while ago. She is being traumatized by the government hundreds of times. The government should be paying her $10,000 per notification.

Posted by: Supremacy Claus | Aug 30, 2012 8:34:13 AM

Victim notification is mandatory in every case, not just child pornography cases. Notably, however, victims an opt out of the notifications. So if a victim feels like the notifications are harming them in any way, they can opt out.

Posted by: domino | Aug 30, 2012 1:31:26 PM

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