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June 28, 2013

"Should child porn 'consumers' pay victim millions? Supreme Court to decide."

The title of this post is the headline of this new Christian Science Monitor piece discussing the Supreme Court's grant of certiorari yesterday in Paroline (noted here).  Here is how the piece gets started:

The US Supreme Court on Thursday agreed to examine whether anyone convicted of possessing images of child pornography can be required to pay a multimillion dollar restitution award to the abused child depicted in the illicit images — even if the individual had no direct contact with the child-victim.

Under the Mandatory Restitution for Sexual Exploitation of Children Statute, Congress said that a judge “shall order restitution” for the victim in a child pornography case in “the full amount of the victim’s losses.”  The law applies to those who personally engage in physical abuse of a child while producing pornographic images of the abuse. But the question in the appeal is whether the same law requires anyone who views or possesses the resulting child pornography to also pay the total amount of restitution.

The issue has arisen in hundreds of cases across the country involving possession of child pornography. The vast majority of courts have declined to require child pornography consumers (as opposed to producers) to pay the full amount of restitution.  Only one federal appeals court, the New Orleans-based Fifth US Circuit Court of Appeals, has ordered full restitution under such circumstances.

On Thursday, the Supreme Court agreed to examine a case from the Fifth Circuit and decide whether the government or the victim must be able to prove there is a causal relationship between the defendant’s conduct and harm to the victim and the victim’s claimed damages.

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June 28, 2013 at 11:36 AM | Permalink

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Comments

Its absurd... The people who abducted and/or made the video, yes they are the ones that get to pay the damages, not the viewers.

I don't care what case you recite or jurisprudance dances are done.

Its the source not the destination that pays on this one...

Posted by: MidWest Guy | Jun 28, 2013 11:41:54 AM

I just watched a video of a Mexican cartel member slice off the head of someone who stole from them. How much should I send the estate of the thief in restitution?

Posted by: Supremacy Claus | Jun 28, 2013 1:14:57 PM

This case has troubling questions that threaten the Constitutional ability for the state to dictate a subjective non-criminal (civil) punishment scheme on an individual based upon a thin nexus between the actors. These consequences will not just be restricted to sex offenses, but to all offenses, violent or not. For instance, if SCOTUS reverses the 5th Circuit's ruling, then a victim of a crime involving violence (say, a drug deal) may sue the person who smokes the pot, of which the drug's origination was produced by the individual who committed the violence.

In another extreme example, a purchaser of a Walmart shirt may be liable for the death of a person in China who died because of abhorrent working conditions in a factory. Now, I DO bring up extreme examples...but the nexus between the two events, in the drug dealer as well as the extreme Walmart example are pragmatically the same. (What? Buying a shirt is not a CRIME? Won't matter in this brave new world.)

That is why I had been flummoxed at the court's refusal to cert more obvious deprivations of liberty to registrants. It also appears that the court is more willing to take cases brought on by decisions against the state as opposed to the individual, which to me may be a harbinger of things to come.

Posted by: Eric Knight | Jun 28, 2013 2:05:58 PM

@Eric.

I agree with you, which is why I am bothered by the way SCOTUS phrased the question for review. The law says that there needs to be a "proximate" nexus, or at least that is the way the vast majority of the courts have read the law. Now, reasonable people can disagree on what exactly proximate means but it must means something, it can't mean nothing. Yet, by leaving the word proximate out of the question for review the court is suggesting just that, that it might be possible that no nexus whatsoever is required to impose monetary liability.

If there are people on the court read the law to require no nexus...zero..zip..nada, how might they be logically countered? The only approach that seems to coherent to me is to argue there was no harm, it is too diffuse, that is why Congress left the nexus out.

Posted by: Daniel | Jun 28, 2013 3:53:09 PM

I think the people who are viewing child porn should have some sort of punishment but I don't think they should be paying the victim. The person who made the video or took the pictures should be, but not the viewers. But everyone involved in the enjoyment or making of child porn should be punished in some way.

Posted by: Bruce D. | Jun 28, 2013 4:04:17 PM

Bruce:

You do realize that we would have to punish everyone who saw Brooke Shields in "Blue Lagoon". I think this should be mandatory so we can really get to the definition of CP.

Posted by: albeed | Jun 28, 2013 5:59:13 PM

The child porn producers might be responsible for some restitution to the children they exploited, but even then, I'm not sure that "payment" is the answer to the problem.
The viewers, intentional or unintentional viewing should not be made to pay restitution because there is no proof of "proximal cause or intent of harm" to the victims that they may have viewed in a 5 second video.
Time to get over it and move on.

Posted by: kat | Jun 29, 2013 9:07:02 AM

Blue Lagoon is only one example of many. What about the video clip from America's Funniest Videos? I read an article somewhere that talked about a clip that is several years old that shows a bunch of kids, nude, dancing around for about 15 seconds. It was on network TV and broadcast to thousands of viewers. I read about this, didn't see it and wouldn't dare search for it.

Posted by: athought | Jun 29, 2013 1:05:16 PM

would be easier and quicker to take an offical pole and see who things "Blue Lagoon" is child porn. Then take those who say yes out and SHOOT them!

Just think of what it would accomplish

Nations collective IQ would jump 100 points
big hunk of the public assistance roles would vanish
big drain on the nations resources would vanish
would lower our national carbon footprint big time

and the hate filled little shits would be gone!

a WIN-WIN anyway you slice it!

Posted by: rodsmith | Jun 30, 2013 11:08:22 PM

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