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May 7, 2013

"The Case for Full Restitution for Child Pornography Victims"

The title of this post is the title of this new paper on SSRN co-authored by Paul Cassell, James Marsh and Jeremy Christiansen concerning an issue that has riven the federal circuit courts and seems destined for SCOTUS consideration before too long. Here is the abstract:

This Article explores the issues of restitution to the victims of child pornography and other federal sex offenses in depth and contends that Congress meant what it said in Section 2259 — specifically that child pornography victims must receive an award for the “full amount” of their losses from any defendant convicted of harming them.  This approach is consistent not only with the plain language of the statute but the well-established tort principle that any intentional wrongdoer is jointly and severally liable with other wrongdoers for an innocent victim’s losses.  Requiring defendants to pay for the full amount of the losses that they have caused will address the significant financial losses suffered by child pornography victims.

May 7, 2013 at 08:37 PM | Permalink

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Comments

Why restrict such restitution to child pornography? Why not include restitution for the victim fore EVERY crime? Actually, I don't have a problem with restitution in a nominative sense, but we may as well charge every cocaine user with restitution to all the victims that were created in the production and distribution of such a product, or require restitution from every assault victim.

The problem is that the matter is never handled in a rationally calculate proximate matter. Instead, just by lumping in someone who downloaded porn with those who produced it with the same proximate liability is not only faulty, but does nothing to actually combat the problem or get true rehabilitative justice for the victims.

Posted by: Eric Knight | May 7, 2013 10:02:38 PM

"child pornography victims must receive an award for the “full amount” of their losses from any defendant convicted of harming them. This approach is consistent not only with the plain language of the statute but the well-established tort principle that any intentional wrongdoer is jointly and severally liable with other wrongdoers for an innocent victim’s losses."

As a criminal defense lawyer who has also done my share of tort litigation, I do not have a problem with "joint and several liability." However, joint and several liability does not require "defendants to pay for the full amount of the losses that they have caused." Joint and several liability requires defendant be responsible for all the harm caused to the victim by the tortfeasor and other torfeasors. Such a system requires a judge to actually calculate the victim's "significant financial loss." Say, for example, $1,000,000. Once the victim gets paid $1,000,000, the victim is owed no more money. In such a situation, those viewers who are convicted after the victim is made whole owe nothing.

Moreover, joint and several liability means the internet only porn users not the manufacturers will pay most of the restitution. That is because manufacturers, as a whole, do more time than internet only users. The sooner you get out the sooner you start paying significant restitution.

The short answer is being a victim of crime or worse a child pornography victim is not and should not be a winning lottery ticket. The criminal justice system should be a compensation system not a reward system that allows recovery beyond actual damages. If the victim wants more then they should file a civil action.

Posted by: ? | May 7, 2013 10:47:46 PM

?: Please, address the fact that

1) the DOJ is the biggest downloader and subscriber to child porn in the world. Should prosecutors have their computers subjected to discovery? Bill would argue for immunity, but why allow the biggest tortfeasor of all to escape liability;

2) the criminalization of child porn itself increases the production of child porn, providing a federal price support for criminal syndicates making the material. The number of sites is now estimated to be 4 million and growing, not shrinking. Could the government be named in a cross claim by the defendant?

3) criminalization is also a factor in the steady increase of sex abuse of real children, legalization is shown to decrease sex abuse of real children in some cross national studies, as asbestos raises the risk of lung cancer, and results in liability, should the increase in risk of sexual abuse result in federal liability for negligent criminalization in the international courts?

4) are there any unforeseen intervening causes of abuse depicted in the child porn which would reduce the liability of the defendant?

5) if there is fairness of remedy, shouldn't the defendant be allowed to sue the child enriched by restitution if the porn was implanted by a virus, for allowing its availability for such implantation?

Posted by: Supremacy Claus | May 7, 2013 11:34:37 PM

I'm with you SC i'm STILL waiting to see any cashed checks from the FBI that have paid "AMY" for thier use of her photo's for decades as bait on the net!

Posted by: rodsmith | May 8, 2013 12:08:34 AM

For many years on this forum I have been a vocal opponent of restitution to child porn victims for the viewing of abuse (as opposed to the actual abuse) however a conversation last fall with an associate of mine changed my mind. The argument he made was to look at the problem from the perspective of child labor. Adult porn actors receive financial compensation for sex work so child porn actors should be compensated for the sex work they do. Because our child labor laws do not allow the direct payment of money to children for sex work, we simply get around that problem by calling it compensation for a crime. I agree with this logic. Discriminating against sex work on the basis of age is wrong and children should not be required to do sex work for free. So now I support these types of fines because it is the only way these children will ever be able to keep up with their adult peers for the same work.

My only caveat is that I do not think these fines should apply to individuals from those countries where child prostitution is tolerated. Such children have already been paid a fair market rate for their work and they should not be allowed to double dip. However, I have not read about any of these children having actually sued (assuming they could even be identified) so this remains a theoretical caveat.

Posted by: Daniel | May 8, 2013 12:21:46 AM

Restitution for any psychological treatment needed by the victims of child porn, should be paid by the producers of the porn, not the knuckleheads who stumbled upon it from some share-file.
And,the payment shouldn't be a lottery winfall for the the victims either. With the amounts they ask for, they seem to anticipate NEVER being able to WORK.

Posted by: kat | May 9, 2013 12:01:15 PM

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