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May 8, 2014

Bipartisan statutory fix after SCOTUS Paroline mess for child porn restitution introduced in Congress

This new Washington Times article, headlined "Bill would address Supreme Court ruling on porn victims; Effort seeks 'full restitution' from porn viewers," details that a legislative fix to the Supreme Court's ruling last month in Paroline is in the works. Here are the details:

Reacting to a recent Supreme Court decision, a bipartisan group of senators introduced a bill that, in certain cases, would force people convicted of possessing child pornography to pay at least $25,000 in restitution to the victim.

The measure would rewrite a section of the Violence Against Women Act and make it easier for victims of child pornography to be granted “full restitution” from felons who have made, distributed or viewed images of their sexual abuse online.

The push follows an April 23 Supreme Court ruling in Paroline v. United States that, in essence, told federal courts to figure out how to assign a nontrivial amount of restitution to child-pornography victims. Currently, with little guidance from the law, courts have set awards ranging from zero to millions of dollars in restitution for victims of child pornography from those who collect and pass along their images.

Child pornography “is one of the most vicious crimes, one of the most evil crimes, in our society,” Sen. Orrin Hatch, Utah Republican, said on the Senate floor Wednesday to introduce the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014. “Victims of child pornography suffer a unique kind of harm and deserve a unique restitution process,” said Mr. Hatch, who sponsored the legislation with Sen. Charles E. Schumer, New York Democrat, and six other colleagues.

Under the bill, the law and its penalties are clarified, including minimum payments of $250,000 for production of child pornography, $150,000 for distribution of child pornography and $25,000 for possession of child pornography.

“The tragic effect of the Supreme Court’s decision in Paroline was this: The more widely viewed the pornographic image of a victim, and the more offenders there are, the more difficult it is for the victim to recover for her anguish and her damages,” said Mr. Schumer. There “should not be safety in numbers,” he added.

The restitution bill would require a court to consider the “total harm” to the victim, including harm from individuals who have not been identified; mandates “real and timely” restitution; and allows defendants to “spread the restitution costs” among themselves, Mr. Hatch and Mr. Schumer said.

May 8, 2014 at 10:43 PM | Permalink

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Comments

I think the so-called "porn viewers" of America should united hang this whole punch including the high court.

Posted by: rodsmith | May 9, 2014 12:46:50 AM

http://www.hatch.senate.gov/public/_cache/files/010a57e1-b38f-485a-9c05-0a39fa03b69c/Amy%20and%20Vicky%20Act%20-%20circulation%20draft.pdf

Here is the bill.

Posted by: Daniel | May 9, 2014 2:18:40 AM

After a quick reading of the text of the bill (thanks for the link, Daniel) it is unclear to me the procedures that the court must follow in order to assign restitution to any victims depicted in pornography possessed, distributed, or manufactured by a defendant.

Does the court order statutory minimum restitution amounts for each victim who files a brief with the court identifying themselves as the depicted victim (as determined by the Court, NCMEC, or other body)?

Does the court levy restitution for each victim depicted, whether they have been identified or not, to go into an escrow account of some sort to pay not-yet-identified victims once they've been identified and come forward?

On a side note: does the quote by Sen. Hatch that child pornography, "is one of the most vicious crimes, one of the most evil crimes, in our society,” confirm that viewers of digital files are really viewed on the level of a child rapist/murderer? There seems to be a lack of levity or proportionality to that statement.

I'm reminded of Judge Richard Kopf's blog post entitled Balance regarding how child porn prosecutions and sentences compare to those of perpetrators of child rape and murder. In the case presented in that post, he presided over a pornography case where the defendant was also the kidnapper/rapist/murderer.

I may have a sideways take-away from this post, but the idea seems to be (and a follow up clarification post would confirm) that the two are not to be equally weighted.

Posted by: Eric | May 9, 2014 1:49:36 PM

Of course, victims of other heinous crimes that result in actual physical damage, such as maiming or murder, do NOT get any "statutory minimum" awards codified. Again, this is strictly a law based upon an emotional component without regard to actual proximity.

An analogy would be for anyone convicted of a DUI to share in the cumulative rehabilitation or retribution to victims of deaths and injuries sustained in alcohol-related accidents. Should everyone convicted of DUI be forced to pay $25,000 to THIS fund? Actually, this is fairer than the Paroline decision because there are literally thousands of innocent victims who die at the hands of drivers under the influence, and many more victims who need medical and perhaps psychological attention that needs payment as well.

Slippery slope. This is why such actions should be handled in civil court, not codified by criminal statute.

Posted by: Eric Knight | May 9, 2014 2:02:34 PM

'Amy and Vicky Victim Restitution Improvement Act of 2014'.... oh, oh spoiler alert, anytime a bill uses a victims name you know it's just another idiotic, knee-jerk proposition meant to keep another politician in office. Figures it would be prominently promoted by our good old boy Senator Hatch from Utah.

Posted by: Randy | May 12, 2014 4:46:16 PM

'Amy and Vicky Victim Restitution Improvement Act of 2014' - Wouldn't this be punitive and hence - ex post facto for all those currently convicted? Huh? Oh that's right, paying thousands of dollars is civil and the Bill of Rights does not apply to whomever we wish to designate the pervert of the day.

Schumer and Hatch, I wouldn't trust them with babysitting my goldfish, much less writing any decent, meaningful, non-pandering legislation.

Posted by: albeed | May 12, 2014 8:21:27 PM

correction - previous post, I meant "Constitution" and not "Bill of Rights".

Does it really make a difference? Either/Both are paid lip service to and ignored!

Posted by: albeed | May 12, 2014 8:24:47 PM

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