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November 14, 2012

Seventh Circuit (per Judge Posner) talks through challenging child porn restitution issues

The Seventh Circuit has a lengthy and intricate child pornography sentencing opinion today in US v. Laraneta, No. 12-1302 (7th Cir. Nov. 15, 2012) (available here). The opinion is authored by Judge Posner and discusses at length the various complicated legal and practical issues that arise when victims of child pornography offenses seeks restitution at the sentencing of those who possess and distribute their images.  Here is the final paragraph from the lengthy unanimous panel opinion:

To summarize: The defendant’s prison sentence is affirmed.  The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases.  The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images.  The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.

November 14, 2012 at 02:22 PM | Permalink

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Comments

That was a painful opinion to read. I'm still not clear on the rule to apply for restitution if the district court finds defendant did upload/distribute the images. Will he still be assessed the full amount (minus the amount alresdy received), because at that point he proximately caused all the harm as a joint tortfeasor? I need to read this one again after a cup of coffee. . . .

Posted by: Afp | Nov 14, 2012 11:31:33 PM

Based on the limited information in the article, it seems to me that the determination of whether the defendant uploaded images of Amy/Vicky has a direct bearing on whether he proximately caused harm to the girls...
Simply downloading an image is not proof of proximate causality...
That said, and depending on the determination, the total amount already paid to Amy/Vicky will be deducted from the total calculated losses the court has determined that the girls suffered...
The downside here is that if the defendant is required to pay a portion of the losses, what happens to the next guy? Will the award amount be increased for every person arrested of possessing images of these girls? If so, then why bother with the math? Simply setting up a standard restitution amount (possibly based on point system) would seem more feasible. Personally, I believe this amount should then be put into a general fund for the "victims" to draw from as needed so that the money doesn't wind up in the hands of unscrupulous lawyers...
I've also noted that the Ninth Circuit and others still don't buy the assertion that defendants that downloaded images "proximately" caused harm to anyone. An interesting notion when you consider that the boneheads in Congress keep ramping up the the penalties against "sex" offenders based on the assumption that they DID proximately cause harm. Bit of a contradiction, wouldn't you say?

Posted by: NJ45143112 | Nov 15, 2012 11:02:55 AM

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