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January 28, 2013

"Rethinking Restitution in Cases of Child Pornography Possession"

The title of this post is the title of this article newly posted on SSRN and authored by Jennifer A.L. Sheldon-Sherman. (The piece is especially timely in light of yesterday's New York Times magazine cover story discussed here). Here is the abstract:

Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth.

In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm.

To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.

January 28, 2013 at 07:38 PM | Permalink

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Comments

I think it clear that someone who knowingly watches kiddie porn has harmed the victim. How that is not obvious to all is beyond me. For all intents and purposes, the freak shows who get off on watching the sexual abuse of children is a peeping tom, and no would would dispute that a peeping tom harms those upon who he intrudes. So why is there a controversy about this? Obviously, to the extent the statute is unclear (or susceptible to judges having some misguided sympathy for these freaks), then maybe it should be revisited, but the concept seems pretty easy.

Posted by: federalist | Jan 28, 2013 9:58:26 PM

Federalist,

The harm is not obvious, at least to some, for the same reason it is not obvious to many--and would indeed come as a shock to them--if they owed restitution to all of those unconsenting victims whom they viewed over the years on television, and in newspapers, magazines, and history books. I've seen pictures of naked, living victims from the Holocaust. I've seen pictures of battered peoples, while being abused, in newspapers covering everything from a local mugging to foreign genocide. I've seen these in newsworthy cases and cases where the only thing newsworthy was the salacious appetite of the public. Yet I don't think I owe these people restitution, nor do most seem to think so. Do you? If so, are you ready to pay hundreds of thousands of dollars--or everything you are worth--to your victims?

However, even if you accept that this harms the victims--and I'm not saying it doesn't, but only that there is a legitimate question (posed above) whether this is the kind of harm we ought to demand restitution for--there is a further issue, the one that has been getting loads of attention lately: the harm is so nebulous, odd, and "multiplicitous."

Imagine if, in unison, a chorus of 300 people in Alaska chant aloud some defamatory statement adversely affecting your reputation, that this occurs each year in some other location involving others, and you discovered this years later when notified by local authorities who track defamatory statements nationally. I would think that the measure of your damages would not be an easy matter. How are you to allot that harm? How are you to do so when there are so many tortfeasors? How are you to do so when other may, in the future, do the same?

This is not a matter of politics. Courts, judges and scholars of all political hues have found these issues difficult.

Finally, your use of the term "freak shows" suggests something to me. It suggests that this is an emotional, visceral matter for you. This might be why these complex issues, which vex many and are obvious enough to courts and scholars across the country, are not obvious to you. I'm not saying that these offenders aren't "freak shows" (whatever that means), but that it's not a term I'd use in a serious conversation of the matter, nor one I've ever heard in any serious conversation of any matter. If I am off-base about characterizing your approach as perhaps unduly influenced by emotion, I apologize.

AO

Posted by: AnonymousOne | Jan 29, 2013 12:27:08 AM

"It suggests that this is an emotional, visceral matter for you."

Welcome to the blog, AO.

Posted by: sashokJD | Jan 29, 2013 1:31:45 AM

"but that it's not a term I'd use in a serious conversation of the matter, nor one I've ever heard in any serious conversation of any matter."

I find that when you strip out reality from conversations, you cheapen the discussion. These people ARE freaks. And evil ones at that.

Funny how you avoid my analogy of the peeping tom.

As for the other issues--i.e., newsworthy photos, what have you, in such cases, the First Amendment trumps other values. And when I see pictures in the news---I am not committing a crime.

This is not really a difficult issue. These criminals have no right to view these unfortunate victims--there's harm that flows from that, and making them pay seems like simple justice.

Posted by: federalist | Jan 29, 2013 6:16:32 AM

I disagree that by not using terms like "freak show," or, for that matter, "retard" or "asshole," one has stripped reality from a conversation. Your reality must be far different than mine. I live in the real world, and while that may be the way I'd conduct a bar-room discussion, it's not how I'd discuss serious policy issues, whatever my opinion on them. Not only that, but it's entirely irrelevant. Whether to punish this offense and in what measure restitution should be had has absolutely nothing to do with with whether the perpetrators are "freak shows." I stand by my opinion that this is just gratuitous insult evidencing an emotional approach.

As for your peeping Tom analogy, the reason it is not helpful is that these people are not peering into a place they should not be. They are instead seeing images derived therefrom. That is very different. In fact, the law is exactly the opposite of your claim. If I peep into some adults bathroom and take a picture of him, then circulate it on the internet, any viewers have not committed any crime. We DO NOT punish derivative viewing. Only for children. That is odd, as there is really no difference in terms of the harm.

As for your First Amendment claim, it is a statement, not a justification. You say that you have done nothing wrong to these victims whom you've viewed, without their consent, simply because the law says you can. Great. All we need to do then, is to make the law say you can do it for children, and we're fine. Don't you see the absurdity of that? I'm not sure why it doesn't strike you as at all odd, or suggest any complexity, that we treat the two differently, especially when the harm is the same. Most of these things aren't even newsworthy in any sense that our founding fathers, or decent people, would find so. It is pure salaciousness. Watch the local evening news. Read the tabloids.

I'd also note that you failed to address any of my points about the difficulty of apportioning and measuring harm. If the matter is so obvious, perhaps you can address that on your next response.

Posted by: AnonymousOne | Jan 29, 2013 12:55:18 PM

I have to agree with AO, and he beat me to it. Federalist, you picked the precise example that disproves your point. Come on! It is not illegal to look at pictures that have been distributed by a peeping Tom!

If you are going to claim the issue is obvious, you really need to think this through. Stop thinking about what freaks you out and start trying to be consistent. If anything, by using the peeping tom analogy, you've made it clear that viewing CP that someone else took shouldn't be illegal. Jeez.

Posted by: Subethis | Jan 29, 2013 1:42:42 PM

You cannot deny my "real world" bona fides, nor my distaste for criminals, and not even I use the term "freak show" in normal conversation, let alone on an academic blog.

Very truly yours,

Someone Purporting to be Bill Otis But Not Actually Being Bill Otis Because Someone Else Already Beat Him to Being Bill Otis, Namely, Bill Otis

Posted by: TheFakeBillOtis | Jan 29, 2013 1:49:30 PM

Federalist:

First define "kiddie porn". Is it hard core (as in "some" of these cases or is a slight stage of undress of a questionable under age individual your definition? Unfortunately, only the government gets to define it or threaten you with hell knows what.

How much do you charge for restitution someone who inadvertently, quickly viewed, became disgusted, and deleted the image(s) and someone who views it night after night. It seems to me that there is no "legal" distinction.

I am a computer neophyte, but can there be hidden files even with the best anti-virus, anti-spy ware? Would you be willing to have your computer examined knowing that you could lose everything in your life?

These are important questions and I get the feeling that the government just doesn't give a damn about any of it. Why kill the golden goose?

Posted by: albeed | Jan 29, 2013 3:59:38 PM

The Fake Bill Otis. Even without registration, Bill Otis is a trademark. Consult your attorney about using it falsely.

Plain language review of the subject.

http://www.legalzoom.com/intellectual-property-rights/trademarks/should-you-trademark-your-name

Posted by: Supremacy Claus | Jan 29, 2013 6:34:16 PM

SC --

When they don't have an argument, this is what they do. It's a roundabout concession, even though they're generally too dense or too juvenile to realize it.

Thanks for your note.

P.S. I do not agree with federalist on all things, but I'm happy to be identified as a friend of his, which I am. Very few on this forum match his analytical ability.

Posted by: Bill Otis | Jan 29, 2013 8:48:38 PM

@ Federalist:

I find that when you strip out reality from conversations, you cheapen the discussion. These people ARE freaks. And evil ones at that.

I think, that to ignore the great number of variations that are exhibited by people who get caught up in this sort of thing is to strip the reality from the conversation. People who get arrested for child porn run the gamut, and to put them all in the same camp doesn't really do anyone any favors. That's not to say that there ought to be a right to view child porn, or that victims aren't harmed. You're going to have the 14 year old kid that has a picture of his girlfriend's breasts (and maybe the girlfriend, as well) all the way to a serial child molester, and then everything in between. Federal and state law as well as the culture is pretty slow to catch on and recognize the differences.

The downside of just regarding everyone as evil and freaks is that that it actually furthers the cause of sexual abuse. Heaping shame onto it helps no one -- doesn't help victims from coming forward, family members from reporting, or potential perpetrators from getting help. It's just generally an unhelpful, and in my view, unrealistic approach that is anathema to justice. Justice divorced from the opportunity for redemption is just naked vengeance.

Posted by: Guy | Jan 29, 2013 8:49:39 PM

Bill,

I think you may have missed AO's post, in which he demolished Federalist's ridiculous argument. Using the peeping tom analogy is not an example of a keen analytical ability. Instead, Federalist undermined his own point, and demonstrated AO's. AO said it above, but we do not prosecute people who look at images distributed by peeping toms. This example militates in favor of not criminalizing possession of CP by those who don't produce it. Also, Federalist didn't respond to any of AO's points about specifically why courts find the restitution issue complex. I think Federalist, and you if you agree with him on this point (that the restitution issue is obvious and not at all complex), should read AO's post carefully. I hope that post isn't lost among the "fake" you, or my own post.

Subethis

Posted by: Subethis | Jan 29, 2013 9:42:33 PM

What restitution should be paid to the poor cartoons victimized by this man?

http://www.stltoday.com/news/local/crime-and-courts/child-porn-cartoons-net-southwest-missouri-man-years-in-prison/article_1291f62d-bd9b-56f7-8fb6-55d9794cd4ba.html

Posted by: Obvious | Jan 29, 2013 10:22:34 PM

Demolished? Wow, that's a pretty big word. I had to check my dictionary for that one. Couple of things first. Yeah, guy, I am talking about sickos, not some 14 yr old, and albeed, yes, obviously innocent possession needs to not be prosecuted.

Perhaps the rest of you geniuses ought to read before you write. I wrote that the kiddie porn watcher himself was the peeping tom, not the person making the porn. In other words, dopes, the kiddie porn watcher victimizes the victim by watching. The watching is what counts, not the means of watching.

As for the other scenarios, um guys, there are other societal interests at stake. None of those are at stake in the kiddie porn arena. But even if there were no issues at stake for some of the other examples--so what? Why does it follow that because society does not punish everyone who watches something they shouldn't that it's somehow a problem to punish kiddie porn watchers? Why is the inconsistency a problem? Kiddie porn is sui generis. You may not like it, but it is what it is.

So once again--I don't get why this is difficult. Those who watch kiddie porn harm the victim by watching. And once we've figured that out, then a damages calculation isn't going to be an obstacle. In other arenas, hard to quantify damages are somehow quantified. So you want to treat kiddie porn watching damages differently?

Ok, gotcha.

Posted by: federalist | Jan 29, 2013 11:41:17 PM

Federalist,

"I wrote that the kiddie porn watcher himself was the peeping tom, not the person making the porn. In other words, dopes, the kiddie porn watcher victimizes the victim by watching."

If you are seeking to apply this to the possessor, rather than the producer, this is a terrible analogy. It is as good an analogy as me saying that the person who possesses a product which was stolen by another person has committed robbery. Actually, it is even worse than that, because in the peeping tom scenario the derivative user has not even committed a crime, whereas the possessor of stolen property may have. You are trying to force the possession construct onto an entirely different, dissimilar one, and it leads to absurd results when applied to any other crime or tort.

I'll take your analogy, however, for what it actually does show us about a analogous case. The derivative possessor, who does not peer into anyone's house to produce CP, is far more like the person who views an image distributed by the peeping tom. And, as I've pointed out, we DO NOT impose criminal liability on that person, we DO NOT require restitution, and we DO NOT have any measure for the restitution which we do not impose.

"Those who watch kiddie porn harm the victim by watching. And once we've figured that out, then a damages calculation isn't going to be an obstacle. In other arenas, hard to quantify damages are somehow quantified."

Now your story changes. No longer is the matter of calculating damages "obvious." Now, you note that since we've solved hard problems in other arenas, surely we can do so here. I'm glad you at least recognize now that the task might be difficult. Nobody is suggesting we can't solve tough problems. What was suggested, however, was that this was difficult, and not, as you claimed, obvious. I gave you specific reasons why it is difficult, and you still have not responded to any of them. Courts across the country have struggled with those questions.

As for having solved these issues in other arenas, you are also wrong to look for much comfort in that fact, and your own hypo is again useful. In your peeping tom hypo, we do not impose liability on derivative viewing. So we have no useful restitutionary model there. Most importantly, it is fairly unprecedented to impose restitutionary liability on people for seeing images they did not create. We can impose such liability, but there is NO model. Thus, even if we have solved what you now admit to be complex problems in other arenas, that doesn't get us very far here.

AO

Posted by: AnonymousOne | Jan 30, 2013 12:20:42 AM

I haven't admitted to squat. Dude, go back and read. My original post basically said, hmmm, there's wrongdoing, harm and therefore damages. Never got into calculation. And so when I get into calculation, the issue is now complex--hardly. You see, I am completely uninterested in a silly argument that because a precise measurement of damages is impossible (how do you translate suffering into dollars) that no damages are awardable. Um, that's not a problem where there's only negligence in a civil action, not where criminal wrongdoing is a given. Perhaps there's some 8th Amendment theory, hitherto unknown, that says that restitution has to be precise or not given. Whatever.

As for courts across the country struggling--maybe, just maybe, you should try reading. I allowed that the statute may need to be revised---it therefore follows that I was talking about the concept. Something which, for all your sophisticated arguing, seems to have escaped you.

In any event, you really need to learn how to think. The reason the peeping tom analogy is a good one has nothing to do with derivative possession or any other nonsense you want to come up with. Ya see, in all of your arguments, you miss the basic point--a peeping tom is taken as a given to be a wrongdoer, and the kiddie porn watcher is a wrongdoer. Both have intruded. They both have committed legally cognizable harm to the victim by seeing him or her--the peeping tom got to see it live, and the kiddie porn watcher got to see it on tape. What you're arguing is that somehow restitution somehow has to go away because it was seen on tape? Mmmmmmmkay.

Your robbery argument is baffling. For you to be right, I would have to have been averring that the making of the tape is the same as watching it. But I wasn't. And certainly a person who knowingly receives stolen property can be liable for conversion, and quelle horreur, damages,--or did you miss that day in law school?

Ultimately, your whole argument, what is it, gee, we don't do this restitution by derivative viewing anywhere else but kiddie porn, so it's somehow this really big deal to do restitution for derivative viewing?? Really?

Well, AO, seems to me that we've figured out that (a) derivative kiddie porn viewing hurts the victim, (b) the derivative kiddie porn viewing is a criminal act and (c) in pretty much every case, criminal act plus harm can equal (c) restitution. All you need is to add (d)--legislation. Where you're getting wrapped around the axle is that kiddie porn somehow needs to be treated like all the other situations where a video that's arguably invasive of another person's rights somehow makes its way into the public square. First of all, that protections should (in your mind) go further is no reason not to have them in the first place. Second, the difference between kiddie porn and other intrusive videos/photographs needs no elaboration--at least as far as the Supreme Court is concerned, and that is some seriously plowed ground. Doubt there's a single vote that would hold otherwise.

In any event, freak show child pornography watcher has committed a wrong that has harmed now grown-up child pornography victim and now has to pay. Not hard.

So AO, I guess I don't argue so good 'cause I say "freak show" to describe some dude getting his jollies watching some little kid getting violated. Maybe you're right--but I have rhetorically kicked your ass all over this thread.

Posted by: federalist | Jan 30, 2013 1:01:39 AM

Crud, I was wrong AO---you're even dumber than I thought. I wrote above:

"it therefore follows that I was talking about the concept."

There was no need to draw any inferences to get there--I came right out and used the word "concept":

"Obviously, to the extent the statute is unclear (or susceptible to judges having some misguided sympathy for these freaks), then maybe it should be revisited, but the concept seems pretty easy."

So now my simple observation that damages calculations in other areas (with less culpability, mind you) somehow gets done despite the inherent imprecision, and I am somehow conceding that the issues are somehow complex? AO, you're either dishonest or stupid. Probably a little of both---I can handle that, but your tut-tutting about the term "freak show" is just too much. I get a mental picture of an effete, beard-scratching pseudo-intellectual twit . . . . ugh.

Well, if you don't like "freak show," you're going to hate it when you read my next post about the "wise Latina" which will come the next time that learned judge tries to explain term limits and congressional power or whenever else she chooses to embarrass herself.

Posted by: federalist | Jan 30, 2013 1:20:26 AM

1. You still have not actually responded to any of the specific questions I posed about measuring damages, none of which claimed that no damages could be awarded. How do you measure when the harm continues to occur? What should the responsibility of each new defendant be, and how should that affect, if at all, the other defendants? How do you measure when it is nearly impossible to figure the quantum of harm from each defendant? Should it matter how many times the defendant saw the image, or how many images he possessed? How do you measure when there are hundreds if not thousands of as-yet unknown wrongdoers that are sure to view the image in the future? Is the victim entitled to an endless amount of damages, or some cap? Is it the cost of her therapy and suffering, or a fixed amount for each viewing? Should it have anything to do with her suffering, or be completely and mechanically divorced from it? How are these matters not complicated? If they are not complicated, why do so many seem to struggle with them? What are they all missing? And it's not just courts struggling with a specific statute--it is academics, prosecutors, defense attorneys, and legislators that are struggling, especially as they consider crafting appropriate legislation.

2. The peeping tom analogy was misleading because it is a form of active intrusion for which derivative possession is not prohibited. If you were simply trying to say that viewing is harm, however it is done, why not just say that? Why instead choose to conflate active intrusion and passive viewership, especially by picking a case in which the law actually distinguishes between the two (and thus arguably undermines your claim that the two are the same, unless you believe the law's distinction to be arbitrary)? Don't you see how that would be highly confusing, at the very least. Why not simply say that Victim is harmed if someone sees a picture of her naked because she does not want him to see that picture. In any event, the importance of distinguishing derivative from "intrusive" viewing is that there may actually be a reason why we don't punish it in the case of seeing images that peeping toms have distributed. If there is such a reason, we ought to see whether it should apply in the case of CP viewers. After all, if the law is not arbitrary in refusing to impose such liability, why shouldn't that reason apply to CP viewership? However one comes out on the issue, it should be considered, not ignored.

3. I never said, as you suggest, that restitution has to "go away" because the viewing was derivative. What I said, instead, was that yours was an odd choice of analogy because there it actually does go away. And I wanted to raise the issue why it does go away there, and whether that should inform our analysis of this issue.

4. "Your robbery argument is baffling. For you to be right, I would have to have been averring that the making of the tape is the same as watching it. But I wasn't. And certainly a person who knowingly receives stolen property can be liable for conversion, and quelle horreur, damages,--or did you miss that day in law school?"

You offered the peeping tom analogy. You did not note any distinction between the peeping tom, who actively intrudes, and the CP viewer, who watches derivatively. You affirmatively stated that the two were THE SAME. Here is what you said: "the freak shows who get off on watching the sexual abuse of children is a peeping tom, and no would would dispute that a peeping tom harms those upon who he intrudes." That is, you said that the CP viewer was a peeping tom--not simply was analogous to one--and that the peeping tom intrudes. But that is simply not true. Look at the definitions of the two. Once actively intrudes, the other views derivatively. If that is a distinction with any difference whatsoever, your analogy is going to be problematic. Perhaps you meant "peeping tom" figuratively. Now, I think that is what you meant. If so, I wish you would have made that clearer, rather than use a term with a definite meaning that is not the same as viewing material procured by another.

As for the robbery analogy, I never said the person who received property could not be liable for conversion. I did say he couldn't be liable for robbery. Before you insult my intelligence or knowledge, quote me carefully. Here is your analogy, using the robber scenario: "the freak shows who enjoy using stolen property is a robber, and no one would dispute that a robber harms those upon whom he intrudes." You would correctly indicate that the possession of stolen property does not a robber make. The statement is only correct if I am using "robber" figuratively, not to actually denote its active element. Again, you used a term--peeping tom--with an active intrusive connotation, just like "robber." I couldn't have known you meant to do so figuratively. I assumed you meant what you said, or you would have picked a more appropriate term.

5. I never said that CP viewership had to be treated consistently with any other harmful viewership. I raised the issue because I think there is a greater than arbitrary reason why we don't criminalize, nor impose restitutionary liability, in those cases. And it should inform the CP discussion.

6. "So AO, I guess I don't argue so good 'cause I say "freak show" to describe some dude getting his jollies watching some little kid getting violated. Maybe you're right--but I have rhetorically kicked your ass all over this thread."

This is juvenile.

AO

Posted by: AnonymousOne | Jan 30, 2013 1:44:37 AM

Argh, for whatever reason, my comment didnt take.

Oh well.

AO, why don't you go back and re-read my original. First, I wasn't dealing with the calculation issue. In response to the post, I said only that the concept of restitution wasn't hard. You wasted a lot of words arguing against something I never said.

Second, why don't you give the harping on the peeping tom thing a rest? It's plainly obvious that the distinction you make is one, to me, that has no difference. But I do get the distinction, and that was plain from the start--remember, I said "For all intents and purposes . . . ." Funny how deeply you get into that issue, but miss the fact that I was only talking about damages themselves, not their calculation. Interesting juxtaposition.

Third, let me see if I get this straight--it's somehow "complicated" to impose restitution itself because (a) other people's private tragedies make their way into the public sphere and no one gets restitution for that and (b) some "lucky" victim may hit the lottery and have some watchers who aren't destitute.

In the case of (a), well, gee, we have some pretty strong countervailing considerations in those cases which are not present in the sui generis case of kiddie porn. In the case of (b), we have a crime, we have a victim. Since you're not arguing that kiddie porn watching shouldn't be punished, you're basically making some sort of argument that although we can punish these guys, we can't make them pay up or that it's problematic.

You want to tweak the statute to prevent some sort of "windfall" to a kiddie porn victim, fine. But don't pretend that the issues I discussed are really that hard. The consistency issue isn't one at all (hmmmmm, since when do we have to punish every harm as a condition to punish one harm, particularly where, as I pointed out, there are countervailing policy reasons not to be consistent), and unless you want to start raising some 8th Amendment issues, the idea that we can punish but not impose damages (because damages aren't precise and there can be lots of recoveries from different people) refutes itself.

You probably like to think of yourself as an intellectual. You're not.

Posted by: federalist | Jan 31, 2013 7:49:13 AM

“It's plainly obvious that the distinction you make is one, to me, that has no difference.”

Do you have any idea, then, why the law makes that distinction? I agree that if the distinction is totally arbitrary, then it doesn’t add much complication to the issue. But, wouldn’t you agree that if there is a reason for that distinction, the issue might be complicated? Indeed, there are reasons for it. There are those who believe that the law should be limited in criminally punishing primary wrongdoers, not those that indirectly derive benefit from that wrongdoing. That is not the only theory, but it is a prominent one.

“Third, let me see if I get this straight--it's somehow "complicated" to impose restitution itself because (a) other people's private tragedies make their way into the public sphere and no one gets restitution for that and (b) some "lucky" victim may hit the lottery and have some watchers who aren't destitute.”

As to (a), as stated above, it is complicated if there is a more than arbitrary reason why the law does not, in those other arenas, proscribe the conduct or impose restitution.

As to (b), I never made this argument, nor do I even understand it. I listed the reasons why courts and legislators have struggled with measuring the harm, and you have repeatedly failed to address any of them. None of those issues that I raised are concerned with a “lucky” victim.

“In the case of (a), well, gee, we have some pretty strong countervailing considerations in those cases which are not present in the sui generis case of kiddie porn.”

I’m curious what those “strong” countervailing considerations are. When a fellow peeped into TV anchor Erin Andrews’ private hotel room, took nude pictures of her, and circulated them over the internet, and dozens of millions of people downloaded the, what countervailing considerations militate against proscription? Moreover, while you may think them newsworthy, most of the local television and tabloid depictions of unconsenting victims have no newsworthy quality to them. If our founding fathers saw what we cavalierly deem “newsworthy,” they’d be in shock. So I’d love to know what these countervailing arguments are, let alone how you’ve determined they are strong.

“But don't pretend that the issues I discussed are really that hard.“

Can I take your last post to mean that you agree that calculating damages is complicated, since you are saying you were not addressing the measure of damages, only the fact of damages? If not, and if you believe that the measure of damages is easy, then I’m sure you have ready and simple answers to all the questions I posed, which you refuse to answer. Maybe you can explain to the legislators crafting these laws, and struggling with doing so, how they are really just being silly because the issue of measuring damages is easy. But, if you do agree the measure is complicated, than I have no quarrel with you on that point.

“The idea that we can punish but not impose damages (because damages aren't precise and there can be lots of recoveries from different people) refutes itself.”

Well, then it’s good that I never made that argument. I merely said the issue of measuring that harm, and crafting appropriate legislation, was a difficult one, without precedent in any current model of crime or tort in which restitution is imposed.

“You probably like to think of yourself as an intellectual. You're not.”

Again, utterly juvenile. I’m not sure what your purpose is in making such statements.

Posted by: AnonymousOne | Jan 31, 2013 12:34:12 PM

Two additional clarifying points:

I agree that, on a second read, your initial post did not expressly question whether the measure of damages is a complicated one. But, in that same post, you questioned why "there is a controversy about this." Since the controversy in large measure is how to measure damages, I took your wonderment to mean you did not see how the measure of damages was controversial. Many courts, even accepting proximate cause, are having a lot of trouble determine an appropriate way to measure this unprecedented kind of harm and the unprecedented way in which it is inflicted and grows. And those courts that do not find proximate cause are not claiming there is no harm. Instead, they are finding it difficult to link any quantifiable harm to a particular defendant. If your wonderment was directed solely toward any issue as to the fact of harm itself, and not at all directed to measuring that harm or linking it in a quantifiable way to a particular defendant, than I misread your post, and for that I apologize. If, however, you were arguing that the measure itself is uncomplicated--a position I think you have taken in subsequent posts--than I do take issue with that, and implore you to answer the questions I posed in that regard.

On the peeping tom issue, our disagreement is simple now that you have clarified that you think the distinction makes no difference. You believe that there is either (a) no principled reason why we neither prescribe nor punish derivative possession of peeping tom material, or (b) some countervailing reason why we shouldn't. On that view, there is no complication for the CP case. I believe (a) there is a principled reason, and (b) there are not countervailing reasons in many of the cases we do not proscribe. Thus, the issue of proscription and restitution, on that view, is complicated in that it must either (a) apply the same principle as in those other cases or (b) come up with some countervailing or distinguishing factor.

AO

Posted by: AnonymousOne | Jan 31, 2013 1:36:23 PM

One final point. I wrote:

"Do you have any idea, then, why the law makes that distinction? I agree that if the distinction is totally arbitrary, then it doesn’t add much complication to the issue. But, wouldn’t you agree that if there is a reason for that distinction, the issue might be complicated? Indeed, there are reasons for it. There are those who believe that the law should be limited in criminally punishing primary wrongdoers, not those that indirectly derive benefit from that wrongdoing. That is not the only theory, but it is a prominent one."

I want to clarify this, which was written while I was half asleep. There are principled reasons not to impose either criminal or tort liability on certain derivative wrongdoers, or those that enjoy the fruits of wrongdoing. Some are quite complex, and I don't have the time to summarize them. However, I will look for links to an article or two making the arguments more thoroughly. This is not a new issue. There has been plenty of debate about why we don't proscribe or impose restitution for even non-newsworthy cases.

AO

Posted by: AnonymousOne | Jan 31, 2013 1:45:23 PM

“You probably like to think of yourself as an intellectual. You're not.”

That is a pretty asinine thing to say. How old are you?

Posted by: Reader | Jan 31, 2013 2:34:38 PM

AO: "Thus, the issue of proscription and restitution, on that view, is complicated in that it must either (a) apply the same principle as in those other cases or (b) come up with some countervailing or distinguishing factor."

me: you seem to be ignoring the long standing torts of "invasion of privacy," "false light," and "public disclosure of private facts" which would be relevant in the voyuer situation. Those torts allow for monetary damages as well as injunctive relief.

Let's look at a typical and realistic voyeur example:

Recently some pervert was arrested a couple of blocks from my office taking upskirt photographs and videos of women. Say this pervert got an upskirt video of me before he was caught. Obviously that is illegal - he can be convicted of that and have to pay restitution for the invasion of privacy. No one questions that.

Say this pervert uploaded the upskirt photo of me to some website who posts the photo of me. That website in posting that photo will in fact be breaking the law - because obviously i did not consent to that photo so they violated the law by not getting proof of age. Thus, the website could be convicted for violating the law requiring recordkeeping for adult material. So already your argument starts collasping AO. The picture was illegal to display even as an adult picture. In fact, it is likely that one of hte primary reasons why Congress passed the law requiring record keeping is to make it illegal to post images of adults without their consent. There is also potential civil liability there - in fact, that is a very clear case of the tort of invasion of privacy, false light, and public disclosure.

It is also equally illegal if i voluntarily posed for a photo and then someone posts it without my consent - that should not be difficult to understand. In addition to the violation of the regulatory laws, posting my image if done for malicious reasons could result in a conviction for harassment, for example. And obviously even if no criminal laws were broken that is a clear case for civil liability.

Now we look at the end user perverts - now, we have already established that the voyuer image was in fact illegal to take and distribute. Why is it not illegal for someone to possess that photo - after all i did not consent to its creation and it cannot be legally shown due to not complying with the record keeping requirements fo federal law. What you seem to be ignoring besides false light invasion of privacy is that there is an obvious difference between a photo of a 29 year old attorney and a photo of a 9 year old child. Namely, due process - no matter how far removed from its creation, anyone would realize that a photo of a 9 year old child being raped is illegal - there is no due process issue at going after the perverts who possess it. By contrast, someone looking at the upskirt photo of me would not know it was illegally obtained and thus illegal. In fact, the only reason why the photo is illegal to publish is because of the violation of record keeping requiriments (and you'd have to be pretty naive to think that one of hte reasons why Congress passed the record keeping laws was to make voyeur images illegal). But a person down the line looking at the picture will not know that - thus there is some legitimate due process concerns present with criminalizing such possession.

However, that does not mean that there isn't damage from having such photos out there - in fact, there would be emotional damage because knowing that such pictures are out there would be incredibly creepy. The emotional damages of knowing that such images taken without consent are out there would be the same whether the victim was 9 or 29 - that is why either the 9 or 29 year old can get civil damages from producers and distributors of the non-consensual images.

The difference is only in the end users - and that is perfectly explanable by due process - Congress would be perfectly in their rights to make a law making knowing possession of sexually oriented images created by a voyuer without the consent of the person depcited - however that law would be impossible to enforce. However there is no difference at all as far as the fact that voyuer created images and child pornography were both created without consent and their distribution creates emotional damage to their victims. However, the only difference is that a person could reasonably believe that an image of a 29 year old was created with consent (in fact, that is the precise reason why the tort of "false light invasion of privacy" exists because by depicting me as a person who would voluntarily pose for an upskirt photo it depicts me in false light).

Posted by: Erika | Jan 31, 2013 2:43:30 PM

Erika

None of the torts you mentioned are, to my knowledge, available to punish or impose liability on derivative possessors. If you cast me in a false light on this website, and "Bob" delightfully looks at the post to see what has been said, I do not believe Bob is liable for anything or to anyone, whether in crime or tort. So those torts do not help. As to the ID requirement, it has nothing to do with ensuring your consent. It does, instead, have to do with ensuring person is not a minor. And one who posts without ID is not liable to the person depicted. He is instead liable to the government. Also, You keep referencing "posting" without consent. I agree that re-distributing effects that harm. But that is not the same as mere possession. In none of the torts or crimes you mentioned is mere possession proscribed.

See part two below.

Posted by: AnonymousOne | Jan 31, 2013 4:17:05 PM

See part 1 above.

You argument about the obvious knowledge that a CP image was illegally produced is the best so far. But, the problem is that the law does not punish cases where it is unquestionable that the picture of the adult was without consent. How many crime, war or torture victims consent to being photographed? Why would we ever presume that such an image was produced with consent? Moreover, in some pictures, it is rather apparent that there has been no consent (think of a picture of Obama, naked in his bathroom). In others, publicly known circumstances make it apparent (such as the Erin Andrews picture). The harm seems the same, and there also seems no real argument about potential consent being unclear.

To the extent the law does not punish this because it feels it difficult to enforce, I agree that I'm probably out of an argument. But I think the law sees more to it than that. I think there is an idea that mere possession of an image one has had no part in creating should not be something for which the force of the state will intervene, nor something for which a person must directly respond in tort to the one depicted. There is also, I believe, the issue that it starts to border on punishing thought rather than action. We don't punish or impose tort liability for possession of false light material because we think do think there is something, on principle, wrong with so doing. If so, why not apply that to CP as well?

Nonetheless, I must say that I do rather like your argument about it being more obvious from CP that there is a lack of consent. That avoids the troublesome newsworthiness claim. I need to think about it.

Posted by: AnonymousOne | Jan 31, 2013 4:17:51 PM

Re: bill otis...'Very few on this forum match his analytical ability.'
maybe it should be 'anal ability'

and to AO I like your skills are you for hire and don't forget this often quoted movie line....

Vizzini: You only think I guessed wrong! That's what's so funny! I switched glasses when your back was turned! Ha ha! You fool! You fell victim to one of the classic blunders - The most famous of which is "never get involved in a land war in Asia" - but only slightly less well-known is this: "Never go against a Sicilian when death is on the line"! Ha ha ha ha ha ha ha! Ha ha ha ha ha ha ha! Ha ha ha...


Posted by: Fred | Jan 31, 2013 7:20:35 PM

Oh good grief--we punish possessors of kiddie porn because (a) we can and (b) they deserve it.

With respect to other harms, sometimes, other considerations get in the way. Erin Andrews was wronged. But what kind of society would go to the lengths needed to stamp out that video and all the others that cause suffering. Understanding that there are limitations in life and that the juice may not be worth the squeeze isn't a complicated explanation. It's called wisdom.

Kiddie porn is sui generis. (How many f'in times do I have to say this?) But even with kiddie porn (e.g., adolescent sexting), there is a concession that stamping out possession through draconian punishment is nuts.

Posted by: federalist | Feb 1, 2013 1:55:26 AM

"Erin Andrews was wronged. But what kind of society would go to the lengths needed to stamp out that video and all the others that cause suffering."

A just society, perhaps? One that took this harm seriously, not just harm when committed by those deemed "freaks" (though I suppose it's much easier to go after freaks then to go after the abusers with whom we live and socialize, those that view Andrews or other images like hers--I know many of my friends did)? How hard would it be, at least to give her a tort claim against all of her abusers? And why not go farther? [Also, Erin Andrews' photo is recognizably her. For the rest of her life, there is a photo identifying her. She cannot take any refuge in the relative anonymity of a childhood photo that bears little resemblance to her in adult form. Indeed, in that sense, the harm to her from abusers is arguably far more permanent.] You suggest the decision is "wisdom." Do you have any evidence whatsoever for the claim that it is the difficulty in enforcement, rather than principle (as I've suggested), that explains why we do not go to such lengths? Any legislative statements? Articles? Anything? Indeed, not only do we not go to great lengths, we don't go to mere inches. We don't criminally proscribe the conduct, so that we could at least use it against the worst abusers. We don't even create a tort right that she can vindicate without, which would not require police officers, but merely the use of private attorneys on contingency. This is not consistent with arbitrary decision, nor difficulty in enforcement. It is, instead, consistent with the idea that there is a principled reason not to create a criminal or tortfeasor of every person who knowingly and intentionally sees or hears something they shouldn't have but does not cause that thing to have been propagated. It is the principled idea that attenuated or derivative seeing may not be what the strong arm and scarce resources of the law should concern itself with. These are not new principles. I'm not just making this stuff up.

Posted by: AnonymousOne | Feb 1, 2013 3:39:00 AM

"But even with kiddie porn (e.g., adolescent sexting), there is a concession that stamping out possession through draconian punishment is nuts." Unless you are referring sexting alone, this claim is laughable. The sentences for CP are as draconian as they come. So draconian that a majority of judges (both conservative and republican, if you are an avid follower of such facts) find them so. You could easily fare better joining the Taliban and being captured by U.S. forces on the battlefield than you can as someone who has possessed pictures of a crime that was committed two decades ago. That's not to say there should be no punishment. It is to say, as one conservative judge did, that we've lost our bearings.

Finally, you've repeatedly said CP is sui generis. You haven't explained why. Thankfully, at least Erika has offered a theory. If you want me to accept that it is sui generis, at least give me something beyond that conclusory assertion alone. When Erika did, I noted I was thinking seriously about it.

AO

Posted by: AnonymousOne | Feb 1, 2013 3:39:54 AM

There is something sui generis about CP--it is our utter revulsion that a certain percentage of people develop to be attracted to those below the age of consent. We revile these freaks. So we will go to any lengths and any expense to imprison people who see pictures of others committing crimes. Wisdom is suspended. We will throw aside any principle we apply in other areas of law. We will spend billions. We will increase penalties without regard for the recommendations of the Sentencing Commission. We will create registries without regard for any evidence that they improve safety, and even when presented with evidence that they increase homelessness and thus recidivism. We will drain incredible amounts of taxpayer funds that could be used to fight terrorists or stop the initial abuse that produces these videos. We will ignore any evidence from any jurisdiction that has reduced the prevalence of CP without imposition of draconian sentences. They are just sissies, not being tough on these freaks, and, anyways, we don’t care about evidence. We just need to look tougher than the next guy on crime, and do something to make this accursed group of ill people disappear.

I think it’s simple why we selectively enforce against CP and not against that newscaster’s perps. We hate CP users. We can’t catch many of them actually molesting children (most don’t), so we’ve created this concept, unprecedented anywhere, that they can go to jail for seeing things they did not produce. Now we can round them up en masse and fill our federal prisons with them. We must, however, be sure to draw the line of this expansive conception of criminality just at our doorstep. Seeing images is real bad, but let’s not do anything if it’s the kind of image—i.e., the kind of abuse—the average man sees. Don’t give that newscaster a damn right of any sort, come hell or high water. That would ensnare us, and while we are bad, we aren’t disgusting freaks.

Selective use of the law, shedding of all the accouterments of usual procedure (e.g., evidence, the Sentencing Commission, judges’ concerns), abdicating proximate cause, and an expansive conception of proscribable harm is what we do when we really despise a group.

Posted by: Subethis | Feb 1, 2013 3:50:28 AM

Can't you make the argument that International Shoe applies? Like isn't this the best interest of the child, Steve?

Posted by: Howard | Feb 1, 2013 3:54:53 AM

Has anybody asked Brooke Shields about the damages she suffered when she was photographed for a nude photo shoot at the age of about 10? Her pictures were on display in a museum for years. Why aren't all the vistors to the museum being punished?
What about cases where the images were cartoons? No people involved, yet men have been sentenced to prison because of cartoons.

Posted by: Obvious | Feb 1, 2013 12:25:09 PM

Subethis, you're ranting.

"But even with kiddie porn (e.g., adolescent sexting), there is a concession that stamping out possession through draconian punishment is nuts."

Should read instead: " . . . , there is a concession that apply the draconian punishment to all situations is nuts."


Posted by: federalist | Feb 1, 2013 2:33:30 PM

federalist, I suppose that is a perfectly valid way to avoid responding to any of my points.

As to Howard's post, I am having a ton of trouble understanding it. What is the relevance of International Shoe, and who is Steve?

Obvious, that is an excellent question. There are so many abusers out there.

Posted by: Subethis | Feb 1, 2013 7:22:06 PM

Fred at Jan 31, 2013 7:20:35 PM:

I have been commenting here intermittently for the past two years as Fred. I don't own the nickname, but I would like to continue commenting here from time to time. So I think we should distinguish between us. From here on, unless you have a different suggestion, I'm Fred 1.

Albeed at Jan 31, 2013 7:20:35 PM wrote: "I am a computer neophyte, but can there be hidden files even with the best anti-virus, anti-spy ware?"

Any visit to an adult pornography site carries, in my opinion, an unreasonable risk of acquiring CP. No security software I am aware of would stop this from happening. This is because of how a computer's operating system is designed to handle images.

Posted by: Fred 1 | Feb 3, 2013 3:05:15 PM

What a bunch of quacks. If you think someone should be paid restitution because some pervert saw a video of them being abused you must take Logic 101 a fundamental course that is vital to the survival of humanity. With more and more people like you spreading Fear, Uncertainty, and Doubt no wonder people can't use their brains and instead follow other people's idiocy. How does looking at a video cause harm to the victim?. If that is the case every law enforcement officer should be behind bars for viewing a child's demise..

Posted by: JohnnyAppleTree | Feb 3, 2013 6:39:34 PM

sorry about that 'Fred 1' go ahead and use Fred. The next time I post I'll just use my last initial (Fred D.) as my sign-in from now on.

Posted by: Fred D. | Feb 4, 2013 5:26:47 PM

Fred D.

Very kind of you.

Fred

Posted by: Fred | Feb 4, 2013 7:08:00 PM

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