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December 2, 2013

Another preview of Paroline via the New York Times

As I noted in this post a few weeks ago, oral argument in the fascinating Supreme Court case of Paroline v. United States is not until January.  But the parties' opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page, already provide a full review of the challenging issues that restitution sentences for child porn downloading victims presents for the Justices.   Adam Liptak in this new New York Times piece, headlined "Evaluating the Liability of Viewers of Child Pornography," effectively reviews the issues and arguments now before the Justices in Paroline:

The notices arrive almost every day. They tell a young woman named Amy, as she is called in court papers, that someone has been charged with possessing child pornography.  She was the child.  “It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it,” Amy, then 19, wrote in a 2008 victim impact statement. “It’s like I am being abused over and over and over again.”

Next month, the Supreme Court will consider what the men who took pleasure from viewing Amy’s abuse must pay her.  Images of Amy being sexually assaulted by her uncle are among the most widely viewed child pornography in the world.  They have figured in some 3,200 criminal cases since 1998.

Amy is notified through a Justice Department program that tells crime victims about developments in criminal cases involving them.  She has the notifications sent to her lawyer. There have been about 1,800 so far.  Her lawyer often files a request for restitution, as a 1994 law allows her to do.  Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”

Amy’s losses are in most ways beyond measure, but some of them can be calculated in dollars.  She has found it hard to hold down a job. She needs a lifetime of therapy. She has legal bills. Her lawyers say it adds up to about $3.4 million.  The question for the justices is how to allocate that sum among the participants in the sordid marketplace for pictures of her.

One of those men is Doyle R. Paroline, who was caught with 280 images of children, including toddlers, being sexually abused.  Two of the pictures were of Amy. The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million....

Mr. Paroline was sentenced to two years in prison, but the trial judge, Leonard Davis, did not order him to give Amy anything.  The link between Amy’s losses and what Mr. Paroline did, Judge Davis said, was too remote.  The United States Court of Appeals for the Fifth Circuit, in New Orleans, disagreed and awarded Amy the $3.4 million she sought. Mr. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it too much, the court said, relying on the legal doctrine of “joint and several” liability....

Mr. Paroline said the ruling was deeply unfair.  “An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate to the offense conduct,” he told the Supreme Court.  Requiring him to seek payment from his fellow sex offenders, he added, “would create a procedural nightmare.”

Amy’s lawyers countered that it should not be her burden to pursue her abusers over “decades of litigation that might never lead to a full recovery.”  She has received restitution in 180 cases so far, she told the justices, and has recovered a little more than 40 percent of her losses.

The Justice Department took a middle ground before the Supreme Court, saying that Amy deserved something from Mr. Paroline, but that $3.4 million was too much.  The right amount, the department’s lawyers said, was “somewhere between all or nothing.” They did not specify what Mr. Paroline’s share might be, saying the trial court should decide. 

A few prior posts on Paroline:

December 2, 2013 at 07:10 PM | Permalink

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Comments

The judge seems wrong here---clearly, "Amy" was damaged by Paroline's illegal viewing of her. So there are damages, and the idea that Paroline doesn't have to pay for the damages he caused is offensive.

Then, to me, there are two issues:

1) Can Paroline be bound by the judgment that Amy's damages are $3.4MM.

2) Can, under the 8th Amendment, Paroline be held liable for things wholly unconnected to him if he didn't distribute the porn.

If the 8th Amendment permits this "joint and several liability" on steroids (and I don't see how it does not), then the amount of damages doesn't really seem to be an issue. He's been adjudicated BRD as having committed a crime that harmed the victim, and the amount has been determined (putting aside whether Paroline can be bound). It cannot be an 8th Amendment violation to require payment of restitution.

Posted by: federalist | Dec 2, 2013 10:05:22 PM

All harm and damages to Amy were caused by the vile feminist lawyer and its male running dogs in the Federal government. All defendants however repulsive should file a cross claim against the federal lawyer thug.

1) It is well established that the prohibition of child porn increases its profitability, and increases its production.

2) All psychological harm came from the notification system of the vile feminist lawyer. All stress on Amy came from prolonged exposure to litigation, and liability should be apportioned properly. The plaintiff lawyer is poking a filthy finger in the psychological wounds of abuse. The nexus of causation between viewing and trauma is so filled with unforeseen intervening causes, there is no legal causation. The claim otherwise is garbage science. A Daubert hearing should be demanded on the link between every single viewing and a specific damage.

3) The defendant should try to get standing on behalf of the children who were sexually molested in real life as a result of the increase of real child sexual abuse caused by the prohibition of child porn.

4) All defendants should demand full e-discovery of all prosecutor and federal judge personal and work computers. Refer all child porn on there to the FBI for investigation. Claim the unclean hands defense in equity. See if the vile feminist federal thug has any images of Amy, and ask that they be made to pay too.

Posted by: Supremacy Claus | Dec 2, 2013 10:47:13 PM

Say torts litigation works, deters the viewing. Say the deterrence of viewing results in more sexual abuse of real children. Should the claim be dismissed on policy grounds, to not harm real children?

Posted by: Supremacy Claus | Dec 3, 2013 5:14:12 AM

Is this a criminal sanction? I wonder if it might be easier to look at it as a civil judgment. First, I'm not sure the Eighth Amendment would even apply. But, if it did, joint and several liability has such a strong tradition in our country that it would likely be acceptable. Really, either the District Court's opinion or full joint and several liability are the only non-arbitrary ways to resolve this. The Justice Department's view, unfortunately, seems pretty arbitrary.

I could see using pure several liability and dividing restitution among total views. Since she already recovered some money, it doesn't make sense for her to receive more than the total restitution amount. But, at the same time, it doesn't seem appropriate to require 100% success rate in finding and convicting every person that ever viewed this in order for her to be made financially whole. If this were a civil case, it would make more sense. She could set the terms of settlement rather than rely on a criminal plea bargaining system and she could decide whether to seek claims against all or against a few. In fact, if the maximum she could receive is 100% of the her loss, it wouldn't make sense to seek it against one individual who may not be able to pay rather than spread it out a bit. Also, from a criminal justice perspective, if she's capped at the maximum amount, all future defendants would get a windfall in not having to pay restitution, which seems odd if it's a punishment.

BTW, shouldn't this fall under "excessive fines" rather than "cruel and unusual punishment"?

Posted by: Erik M | Dec 3, 2013 8:28:10 AM

"She needs a lifetime of therapy."

I was abused as a child. I did not realize that I needed a lifetime of therapy and yet I became very successful. I now realize though that I should use my lack of lifetime therapy as an excuse for any way I may fail. I am sure my lack of therapy is how I ended up as a pariah. I just wish someone would have taken pictures of me being abused because I do like money.

One thing that I don't understand about everyone's obsession with CP is if that is illegal, why is it not illegal to watch anyone committing any crime against me? If I am filmed being assaulted by police, will big government notify me every time someone views that and I will be able to collect money from them? I see no difference from this fleecing.

Posted by: FRegistryTerrorists | Dec 3, 2013 9:41:09 AM

Youtube is filled with videos of recorded batteries. FRT makes the point that all viewers should pay whenever one clicks on such a recording. How about the recordings of Jackass style painful accidents? How about the viewing of vigorous debating conflicts? How about the viewing of recorded testimony or depositions?

Posted by: Supremacy Claus | Dec 3, 2013 2:49:02 PM

Because a jury does not determine the harm done to Amy and the resulting restitution due, but the legislature decided their should be that award, it amounts to a bill of attainder.

"Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community." James Madison, Federalist Number 44, 1788.

In other words, the amount should be a jury found fact and not a sentencing condition.

Posted by: George | Dec 4, 2013 3:14:19 AM

Supremacy Claus (Dec 3, 2013 2:49:02 PM):

Exactly.

I think the main reason anyone thinks compensation is acceptable is because we have the Sex Offender Witch Hunt. Nothing has to make sense, be reasonable, or 100% legal. For something to be "legal", a criminal regime and their terrorist supporters just have to be able to get away with it.

And how is it possible that it is legal to look at pictures of someone being murdered yet not naked children? It does seem somehow different to me but I can't figure out exactly how. I think sex with children is wrong, but so is murdering people.

Posted by: FRegistryTerrorists | Dec 5, 2013 1:53:39 PM

This report reiterates that the DoJ notice causes as much or more injury than anything else. The victim already knows the pictures are floating out there and being viewed, which causes an ongoing injury and sense of violation. That underlying injury is unlikely to ever be redressed until google, ISPs, P2Ps and legislatures create mechanisms to keep these images from being found and shared easily. However, it's significant that one particular person's downloading doesn't cause any specific injury as it isn't even known until the notice is received. The notice causes the painful reminder, exacerbating the injury that already exists from knowing the images being out there and viewed anonymously. Just read the start of the article, the feeling of re-abuse is always there, thus a specific downloader doesn't change that with any one act, especially because it's not known until caught and a notice provided, meanwhile, the injury is clearly exacerbated by the unending notices:

The notices arrive almost every day. They tell a young woman named Amy, as she is called in court papers, that someone has been charged with possessing child pornography. She was the child. “It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it,” Amy, then 19, wrote in a 2008 victim impact statement. “It’s like I am being abused over and over and over again.”

Posted by: AFP | Dec 8, 2013 10:53:16 PM

On causation, I think the best legal mind in the country on this subject would say someone who only viewed pornography does not do the harm of pornography in a legally measurable way for a civil suit. This would be Catharine Mackinnon. The model anti-pornography civil ordinance she wrote with Andrea Dworkin permits suing only sellers, makers, distributors, and exhibitors when there is a showing of harm. Mackinnon's mind is superior to mine, so I could be wrong and am 'just saying.' Right now I think this part of the VAWA will be thrown out on constitutional grounds, as several propose above. At orals I suspect the Justices were largely silenced on the unconstitutional point, because they were either somewhat overwhelmed or did not want to come across as unsympathetic when the media offered sound bites.

Posted by: Elle | Jan 24, 2014 12:40:49 AM

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