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February 16, 2015

Senate unanimously passes child porn restitution bill to fix Paroline problems

As report in this article, last week the U.S. Senate finally passed a bill to restructure the standards and procedures for restitution awards for victims of child porn downloading offenses.  This bill made it through the full Senate a little less than year after the Supreme Court issued a split decision on this matter in the Paroline case.  Here are the basics of the response by Congress:

A bill named for two women whose childhood images were turned into heinous pornography was handily passed in the Senate on Wednesday. The Amy and Vicky Child Pornography Victim Restitution Improvement Act was approved by a 98-0 vote.

The measure gives hope to victims that they will finally be able to win major compensation from any single person who illegally viewed, made or distributed their images. Victims of child pornography and other sexual exploitation “ought to have access to full restitution from any single perpetrator for their losses,” said Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican.

The bill establishes a minimum amount for damages for certain child pornography offenses and makes any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators, Mr. Grassley’s office said. Perpetrators, instead of victims, will have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages.

The bill responds to a 2014 Supreme Court 5-4 ruling in Paroline v. United States that said people convicted of viewing, making or distributing child pornography should be ordered to pay a nontrivial amount of restitution — but it should fit the scale of the offense....

The Paroline case stemmed from a lawsuit filed by a woman known as “Amy Unknown” against Doyle R. Paroline of Texas, who was convicted of having two images of her in his child pornography collection. When the 5th U.S. Circuit Court of Appeals ruled in Amy’s favor and ordered Paroline to pay $3.4 million in damages to her, Paroline asked the Supreme Court to review his case. Paroline’s court-appointed attorney said after they won last year that he would contest any restitution award against his client.

Amy, now an adult, was sexually assaulted by her uncle when she was about 9 years old. The uncle put pictures of her rape online, and those images have been shared by pedophiles worldwide. “Vicky” is the pseudonym of another victim, whose father raped her as a child and took “orders” from men to make videos of her being bound and sodomized.

I am a bit concerned that, even if this bill makes it through the House and is signed into law, defendants like Paroline and others who have already been prosecuted for child pornography offenses will be able to rely on ex post facto doctrines to still avoid having to pay any significant restitution awards to Amy or Vicky or other victims. Still, this new statue could and should help child porn victims recover significant sums from future offenders.

A few (of many) prior posts on Paroline and child porn restitution issues:

February 16, 2015 at 11:18 PM | Permalink

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The Free Press and Free Speech clauses are two sided coins. One side is the right to receive information. The prosecutions, the tort litigation, and this statute violate those Clauses.

I have watched Mexican drug cartel and ISIS beheading vids. The damage in those recording make those in Proline seem absurdly trivial. Shoud I and millions of other viewers be made to pay every time we watch the recording of any crime? I watched looters invade a store in Ferguson. The losses are not just dignitary, but economic and substantive if a real injury took place. Do I owe the owners $millions, and it is my burden to track down the millions of others who also watched those crimes?

Just another witch hunt of the productive male by the vile feminist lawyer and its male running dog seeking the appearance of piety, and expanding the scope of PC. All PC is case. At some point, its targets will realize its bad faith scheme and bunko operation, and get violent in self help. That is the sole recourse visible to me.

I would support the summary executions of the producers of child porn. However, there are people lower in morality than them, the members of Congress. All are lawyers, or told what to do by lawyers.

Posted by: Supremacy Claus | Feb 17, 2015 12:26:25 AM

once it's signed. I will wait for the massive lawsuit with the United States Department of Justice as the defendant since the reports I've seen put at about 50% of the cp on the web is placed BY THE US GOV

Posted by: rodsmith | Feb 17, 2015 1:02:54 AM

SC has it right, keep in mind that the definition of child porn could be as simple as a 17 year old boy taking a self photo of himself in a suggestive pose.

Also, its not necessarily the producer of the content, let's suppose someone emails you (or rather a virus) a video or photo, or let's suppose a smartphone app, or p2p application gets a file on your computer. Since this is a civil suit, its hard for a challenge.

It would be more fair, if Congress would stop just focusing on "sex crimes", congress folks should pay taxpayers for not serving the folks.

So someone could be on the hook for millions for a single video watched, but if a person is tortured or beaten, there is no compensation. What about adult videos, if an adult is raped, or stripped, or beaten, against their will shouldn't there be liability?

Of course SC is blaming feminists , when its conservatives who love to pass legislation too, and don't like court reviews. Of course there was a court decision deeming excess liability against the law, state farm v. campbell.

Perhaps we can have a wise discussion as to whether a challenge using that case could prevail, unlike congress that doesn't debate merits.

Posted by: Alex | Feb 17, 2015 4:16:29 AM

How is liability determined, a "victim" could visit a hundred different people, therapists, social workers, group panels, doctors,etc and bill lots of money. Nevermind the definition of child porn is expansive.

Posted by: Alex | Feb 17, 2015 4:31:27 AM

Rod> I consider it legal malpractice, and certainly inadequate representation if the defense lawyer traitor fails to demand total e-discovery on the personal and work computers of all prosecutors and their supervisors in any case. Discovery has this scope in the Federal Rules of Evidence, which are often copied by the states:

"Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)." (At (26) (b) (1))

It is then a duty to the client to publish the entire content on these computers to the internet, including the metadata, such as the time of day of access to the files. If any were outside work hours, the prosecutor needs to explain those episodes.

Then do the same for the computers of the judge. I have been informed by experienced lawyers, only a pro se defendant will ever do that.

Then the other standard of due care is to demand a Daubert hearing, where it will be shown that child porn actually decreases the rate of child sexual abuse of real children. The law against child porn promotes the production of child porn. It is suborned by the massive subscription by the government, as Rod points out correctly. Its illegality enriches and empowers foreign criminal syndicates that are engaged in human trafficking. Perhaps, becasue of these effects, the prosecutors are being paid off by the human traffickers.

Posted by: Supremacy Claus | Feb 17, 2015 5:41:12 AM

If a picture of Amy is found in the computer of a prosecutor, file a cross claim against the vile feminist and its male running dog, as an individual, in accordance with the new legislation. This is not liability to the defendant but to Amy.

Posted by: Supremacy Claus | Feb 17, 2015 5:47:12 AM

This solution seems unreasonable:

The bill establishes a minimum amount for damages for certain child pornography offenses and makes any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators, Mr. Grassley’s office said. Perpetrators, instead of victims, will have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages.

I am certainly AGAINST child pornography...and do AGREE that victims should be compensated...but it seems to me that the perpetrators are already being harshly punished under our present system. There should be a better way than making the first person who gets caught responsible for everything (especially from viewing rather than producing) and then force him to find and sue similarly guilty parties. I'm not sure what the solution is...but this doesn't sound like it.

According to this: http://www.oag.state.md.us/Press/Amy_and_Vicky_letter.pdf
the idea is that you are not to punished for your OWN actions, but for the ACTIONS OF OTHERS. Paroline possessed 2 images. He should pay for it all? Is this the Gov imposing an excessive fine on one individual?

Posted by: folly | Feb 17, 2015 7:21:16 AM

The mind of Doug Berman:

"I am a bit concerned that, even if this bill makes it through the House and is signed into law, defendants like Paroline and others who have already been prosecuted for child pornography offenses will be able to rely on ex post facto doctrines to still avoid having to pay any significant restitution awards to Amy or Vicky or other victims. Still, this new statue could and should help child porn victims recover significant sums from future offenders."

Ah, we know how to make the world a better place, if only that darned piece of paper called the "Constitution" didn't establish non-governmental given rights and protections for what we consider to be nasty people. Ex-post facto and bills of attainder be damned.

I havn't read the bill, but is CP defined strictly, or is is whatever Billy O. and his successors (Feds) define it to be. Until we do that (properly), I am sure that we are still trying to polish a POS. Remember, the law was written for federal persecutors so that receipt (and potentially subsequent quick destruction) is treated as equivalent or more severely than possession, since receipt by electronic means is more easy to verify. All for the greater glory of the fatherland. The same is true with many of the "trafficking" laws that are being praised in many states. We are going to hell in a handbasket and the devil is in the details!

Posted by: albeed | Feb 17, 2015 8:09:41 AM

"seems to me that the perpetrators are already being harshly punished under our present system"

Jail time and being on watch lists etc. can be a harsh punishment, but how much are the victims helped by such things? Also, not sure how much all viewers of this stuff are being punished -- probably somewhat an arbitrary matter. Fiscal compensation also should be put to a somewhat lesser test than jail time & other limits on civil liberties.

I also don't think Prof. Berman, who repeatedly posts stuff on excesses in the fight against sex crimes, doesn't care about constitutional rights.

Posted by: Joe | Feb 17, 2015 10:26:33 AM

This does seem like a situation ripe to result in inequities. But one thing that mitigates it a little is that it shouldn't be *too* hard for a defendant to find the other jointly-liable parties. It seems like these pictures are generally identified by pseudonyms ("Amy", "Vicky", etc.). And the feds are prosecuting hundreds of folks for possession/receipt/distributing/manufacturing these images. So, if you are sued for restitution over the Vicky photos, it shouldn't be too hard to implead everyone else known to be prosecuted regarding those photos. You might even be able to get the magistrate judge supervising discovery to order the feds to give you a list. Where you get a lawyer to help you with this may be another story.

Of course, if the lawyers for the victims are smart, they will investigate potential defendants and sue the ones with the most/most easily seizable assets. So potentially the first named defendant won't have trouble affording a lawyer...

Posted by: anon | Feb 17, 2015 11:29:38 AM

anon @ 11:29:

Sounds like a lawyer for whom money and not restitution and making victims right are the "real" motivating factors.

If I were an enterprising "child", I would take a suggestive selfie and have it sent to as many people with real money as possible. The people who receive it are obligated to report the receipt to LE, if they just delete without any second thoughts, voila, instant millionaire! This may seem farfetched but bad laws make for bad cases and we are addicted to making ever worse laws. You can never be "a member of the world's oldest profession" through todays current trafficking laws, as long as you have someone to blame, however inconsequential their actions.

Posted by: albeed | Feb 17, 2015 12:26:10 PM

Albeed. What is LE?

Posted by: Supremacy Claus | Feb 17, 2015 1:30:32 PM

well anon first it's not the defendants job to do the state's job for them. It's the state's job to find criminals. Joe as for this!

"Jail time and being on watch lists etc. can be a harsh punishment, but how much are the victims helped by such things? Also, not sure how much all viewers of this stuff are being punished -- probably somewhat an arbitrary matter. Fiscal compensation also should be put to a somewhat lesser test than jail time & other limits on civil liberties."

are you NUTS? this type of thinking is what has given us the criminal stupidity of the so-called "civil law" exemption that allows you to be taken to criminal court and found NOT GUUILTY and then dragged across the hallway to a so-called CIVIL court and found GUILTY of the very thing a CRIMINAL COURT said you did not do! You know that nasty CRIMINAL COURT that has a MUCH HIGHER BURDEN OF PROOF! Sorry first that's forum shopping. have to pick one or the other. Second sorry but the court with the more drawn out procedure and proof requirements would ALWASY take priority over the other.

Posted by: rodsmith | Feb 17, 2015 5:01:29 PM

SC:

LE = Law Enforcement.

Posted by: albeed | Feb 17, 2015 10:24:04 PM

The US in some ways is becoming totalitarian, i'm not saying its as bad as russia or china but who would want to do business, acquire live savings over 30 years,pensions,have multiple businesses that are family owned, only to lose everything because one or two images where found on your computer.

Should the commentators lose all their 401k savings, and assets,homes,etc because they watch a beheading video of ISIS or torture video? Are folks who watch such videos "revictimizing the victim" that's absurd, and what about adults?

If an adult gets beaten up and a video is created or even raped, should he or she have the same rights?

Also, don't forget child porn need not involve children or rape, consensual sexting (nude photos being exchanged) or even a self-taken photo of your teenage son non-shared is child porn under federal law.

Posted by: Alex | Feb 17, 2015 10:27:57 PM

Albeed. To my knowledge. There is no duty to report a crime, except in participants, conspirators, accomplices, accessories. That report would just mitigate sentencing for those participants in a crime, but would not absolve the crime. I am afraid that such a report would imply a confession.

As to an enterprising child sending porn of her self to rich people, very good point. My initial response would be that the child is a producer of child porn. As a matter of policy, people should not be enriched in a tort settlement by the crime they committed. But that would be a matter of policy debate and would require the persuasion of a judge. Night mare scenario never considered by the lawyers in the Senate. That is why laws should be tested in small jurisdictions.

Posted by: Supremacy Claus | Feb 17, 2015 11:17:38 PM

SC:

My understanding is, that if you receive an E-mail, Image, etc. on your computer in any way, shape or form and it could be CP, (even a photo-shopped or created image) you must report the incident to LE or you "too" could be charged with "receiving" it, along with the catch all "obstruction of justice" for deleting it. A deleted images still leaves an electronic trail (as you know, most of the time, it is a government generated trail) on you computer. If for any reason, LE believes you may have received one of these images or files, you most likely will be visited by your local friendly SWAT Team in the middle of the night to see what is going on. I can guarantee that they won't knock and wait for you to come answer the door.

I agree with Alex above about where this country is going, with the benevolent lawyers know best nod of the Doug Berman's of the world (along with the feminist loving lawyers you mention frequently). I mean, who wouldn't want to stomp out this scourge? Silly, I remember an article posted here not long ago dealing with sentecing proportionality, but you can throw that out the window when sex and/or children are involved.

So your only recourse is, of course, to turn your computer over to LE for who knows how long (maybe 2-3 years) and let them investigate, always with a keen eye on you in the corner as a suspect.

You can imagine the frightening thought of hidden files!

S--g H--l.

Posted by: albeed | Feb 18, 2015 9:22:56 AM


#childpornography
Conflict is the essential core of a free and open society. If one were to project the democratic way of life in the form of a musical score, its major theme would be the harmony of dissonance. My function is to raise questions that agitate, that break through the accepted pattern. We are a nation of VICTIMS brought to you by our GOVERNMENT legislators who are unable to do anything productive in Congress but find bipartisanship in child bills. Those who profit from child abuse is the multi BILLION dollar Child Abuse Industry that consists of THOUSANDS of ORGANIZATIONS with high paid CEO's and staff all full of nefarious individuals that must convince both us and their victims that everything is abuse. News media, therapists, prosecutors, judges, lawyers and sex police. Thousands of jobs depend on maximizing claims of abuse.

All the research that law enforcement uses to put people in jail has come under fire from those very researchers and a hand full of judges who did their own research not relying on, "what everybody knows". A group of academics convinced Law Enforcement of the harms associated with children using pre internet research and they did so on a post internet society. Prior to the Internet, a large child pornography collection would have been indicative of an enthusiast of long-standing, somebody who devoted much time, effort and money to amassing their collection, but the Internet has allowed individuals to download huge amounts of material in a very short space of time like in hours for FREE. In other words, a collection of 5,000 images reflects the speed and quality of an individual's Internet connection rather than the effort they expended to painstakingly build a collection over years possibly decades.

When someone searches on a Peer to Peer (P2P) filesharing software it typically works as follows: initially, the user downloads a software program onto his own computer or Internet-enabled device that permits the individual to share and download files from the P2P network. Upon installation, the software typically creates two folders on the user’s computer by default: an “incomplete” folder, which contains pending downloads, and a “shared” folder, which contains fully downloaded files which are not readily available to the user unless they know how to search for them; until then the file remains hidden to the user in the, "AppData file". Any files downloaded to, or other files placed in, the shared folder are immediately made available for sharing with all other users on the P2P network. When someone searches for lets say the word "teen" they are flooded with images to download: however they don't know if the images are what they asked for and they don't know until they open the file and by then its too late law enforcement software has already pick up the Ip address of the downloader. Then law enforcement goes to a secret FISA court to obtain a search warrant for the IP address.

Thousands are in prison based on those researchers opinions which they now say are wrong and faulty. Tell that to the people behind bars and the family's that were ruined kids left fatherless and in some cases both fatherless and motherless where their children are then trafficked by child services. Who will pay their creditors? Take care of their children? Who will pay as Mortgages are left unpaid along with other debit? The TAXPAYERS will!! The taxpayer burden to house those convicted are between 35 and 45 THOUSAND dollars a year. All this brought about by images and NOTHING more, NO child victim, NO child hurt, NO child was in contact all they did was look at images that in many instances were taken by children themselves. Amy Adler, Associate Professor at the New York University School of Law states, "Everything becomes Child Pornography in the eyes of the law, clothed children, coy children, children in settings where children are found, perhaps children themselves become pornographic". IN FACT In REALITY The majority of pedophiles get more sexual gratification from a Sears Catalog than pornography. It is RARE someone records their crime. Numerous legislators and criminal justice officials have in recent years cited defective social science evidence that purports to provide empirically objective support for interrelationships among child pornography consumption, pedophilia, and child molestation; However the empirical evidence cited so often by law enforcement is significantly flawed and or incorrectly interpreted. Therefore the resources that target and severely punish child pornography consumers is misplaced.

http://www.truthmovement.us/2015/04/the-child-pornography-crusade-and-its.html

Posted by: Frank Gillice BSc | May 2, 2015 8:06:26 AM

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