What Is Justice For Child Porn Victims? And From Whom?

Last Thursday, the Supreme Court issued a 5-4 ruling in Paroline v. United States. The court decided that, while a victim of child pornography is owed restitution from any and every person who has viewed it, a single individual cannot be held liable for the entire sum of that restitution. Lyle Denniston explains:

The decision clearly will spare a Tyler, Texas, man, Doyle Randall Paroline, from paying all of the nearly $3.4 million that lawyers for a young woman identified only as “Amy” had demanded from him.  Paroline had two images of her being photographed as her uncle sexually abused her when she was eight years old.  Now a young woman, she had testified that “My life and my feelings are worse now because the crime has never really stopped and will never really stop.”

The Court ruled that a federal district court judge must calculate how much to assess against Paroline personally.  There is no doubt, Justice Kennedy wrote, that Paroline “was part of the overall phenomenon” of distributing and keeping images of the abuse of Amy.  He should have to pay his share and, Kennedy said, it must be enough to send the message that his part in the crime was not victimless. Lawyers for “Amy” had insisted that Paroline, like everyone who has her images and looks at them, contributes to her continuing injury, so each of them should be required to pay the full amount for her losses, in whatever multiples of individuals are found and prosecuted for having the pictures.

In a dissent joined by Scalia and Thomas, Roberts argued that as the statute in question provided no formula for how to calculate such restitution, “Amy” should get nothing from Paroline. Sotomayor dissented in the other direction, arguing that Paroline should pay the full sum or collect it from other offenders himself. Rick Pildes notes that this is all Congress’s fault:

As eight Justices saw it, the text of the law suggested Congress had created a messy situation:  (1) Congress intended to ensure that victims like Amy receive some restitution; (2) Congress did not intend that they receive as much as $3.4 million in restitution from someone who possessed two images of the victim, which is what the victim sought; (3) and Congress had not provided any direct guidance in the statute itself for how courts ought to determine the point between $0 and $3.4 million at which restitution ought to be set.  Congress must have meant something between $0 and $ 3.4 million, but provided no road-map for even generally figuring out how much.  All eight Justices presumably agree it would be better for Congress to address and resolve the general policy issues.  The question is what to do when Congress hasn’t — and, perhaps, what decision from the Court makes it most likely that Congress will do so.

But Paul Cassell, one of “Amy’s” lawyers, argues that the law’s intent was already clear:

[T]he text of the statute makes clear that Congress wanted child pornography victims like Amy to recover “the full amount of their losses” — not some partial, fractional amount.  Moreover, the Court entirely ignored an amicus brief filed seven Senators who were in Congress in 1994, when the provision was enacted.  As Senators Hatch, Feinsten , Grassley, Markey, McCain, Murray, and Schumer explained in their brief, “Congress really did mean what it said.”  They provided drafting history showing that Congress had specifically decided not to include a “proximate result” limitation in the other parts of the statute — only subsection (F).  In other words, Congress meant for victims like Amy to recovery the full amount of their losses from each defendant.

Either way, it seems the matter won’t be settled until Congress amends the statute. Marci Hamilton urges them to make the perps collect the restitution money, in line with Sotomayor’s position:

There is a simple two-part fix, if you parse Justice Kennedy’s and Justice Sotomayor’s views closely enough: (1) Congress should enact a federal rule of contribution among child pornography defendants and (2) replace “proximate cause” with “aggregate causation.”  That would make it possible for the many Amys of our world to obtain restitution from even one perpetrator in the marketplace and obtain full restitution.  The best part of this solution is that it would then incentivize the one defendant forced to pay it all to identify others as contributors.  Let the defendants go after their many contacts in the market for contribution.  That reduces the restitution, even if levied against a single person, from an excessive personal fine, and puts the burden of parsing out blame on the bad guys, not the victims who never asked to be on the Internet in the first place.

Posner proposes an alternative that he considers more just:

The problems with Kennedy’s and Sotomayor’s approaches stem from the same source: When Congress drafted the provision about restitution in the Violence Against Women Act, it thought about traditional types of harms—when one person directly injures another—and not the unusual collective injury in this case. That’s why the justices’ efforts to twist the statutory language lead to unfair and bizarre outcomes.

Congress created this mess, and only Congress can fix it. Every person who is convicted of child pornography should pay a large fine into a government trust. The fine would be tailored to the wealth of the defendant and the magnitude of his wrongdoing. Then this fund would be used to compensate all the identified victims of child pornography, who would share it in proportion to the severity of their injuries. That way, not Kennedy’s or Sotomayor’s, lies fairness.

(Video: Clip from the Law and Order: Special Victims Unit episode “Downloaded Child”, based on the case of “Amy”. It envisioned a much different result than the ruling in Paroline.)