It's about time.
While it cannot heal all their wounds, victims of child pornography can finally be awarded restitution for the damage that continues throughout their lives.
For instance, when "Amy" was a little girl, her uncle made her famous in the worst way: as a star in the notoriously evil world of child pornography. Photographs and videos known as “the Misty series” depicting her abuse have circulated on the Internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.
Now, with the help of an inventive lawyer, the young woman known as Amy — her real name has been withheld in court to prevent harassment — is fighting back.
She is demanding that everyone convicted of possessing even a single Misty image pay her damages until her total claim of $3.4 million has been met.
The Mandatory Victim Restitution Act (18 U.S.C. §3663A) requires that a victim of a federal crime be given restitution for injuries or damages suffered as a result of the crime. Usually this Act applies to victims suffering economic losses, but it also applies to child pornography cases, (along with another law dealing specifically with losses restitution in child pornography cases, 18 U.S.C. 2259) Victim losses may include:
- Medical services relating to physical, psychiatric, or psychological care;
- Physical and occupational therapy or rehabilitation;
- Lost income; attorneys’ fees; and
- Any other losses suffered by the victim as a proximate result of the offense.
A precedent has been set for restitution simply by possessing the photos of a victim.
A defendant can now be ordered to pay restitution for these losses even if the defendant’s only connection to the victim is that he has a copy in his possession. The defendant can be ordered to pay restitution to the victim even though the defendant had nothing to do with the abuse and merely possessed the computer image.
In a recent case, United States v. McDaniel, the Eleventh Circuit Court of Appeals decided that a victim who is identified as the child in a child pornographic image can be entitled to victim restitution. The defendant possessed a collection of photographs that included those of a child known as “Vicky” depicting graphic images of unspeakable sexual abuse at the hands of her own father. Now an adult, Vicky’s identity was confirmed through the National Center for Missing and Exploited Children (NCMEC) data base, and the prosecution informed her that the images of her abuse had been found and viewed by the defendant on his computer.
The victim suffers damage each time the images are viewed by another person on the internet.
At the defendant’s sentencing, the government asked the sentencing judge to order restitution for Vicky for the cost of past psychological services and cost of future counseling and therapy. The government offered an expert on the impact of psychological trauma who diagnosed her with the following psychological disorders:
- Post traumatic stress disorder;
- Dissociate disorder;
- Depression;
The psychologist also “opined” that Vicky’s knowledge that her images are being disseminated on the Internet causes Vicky to suffer a continuing trauma that he compared to an ongoing slow acid drip.
The defendant was ordered to pay restitution for the harm caused to the victim on the theory that the victim suffers each time her image is viewed. “Vicky suffers every time the child pornography containing her image is traded and viewed.” The defendant was ordered to pay Vicky $12,500 in restitution and the court of appeals upheld this restitution order. Even though the defendant played no part in the making the photographs and certainly did not abuse the victim, the defendant’s conduct in merely possessing the images contributed to the “proximate cause” of the victim’s harm.
The most effective approach is being taken by "Amy’s" lawyer, James R. Marsh, whose practice focuses on child exploitation cases. Mr. Marsh’s arguments are the fruits of a national movement granting greater rights to crime victims and shifting the financial burden of crimes to criminals, said Paul G. Cassell, a former federal judge and professor of law at the University of Utah, who advised Mr. Marsh and wrote a brief supporting his position in a Texas case.
Amy’s uncle is now in prison, but she is regularly reminded of his abuse whenever the government notifies her that her photos have turned up in yet another prosecution. More than 800 of the notices, mandated by the Crime Victims Rights Act and sent out by the federal victim notification system, have arrived at Amy’s home since 2005.
Those notices disturb Amy when they arrive, but Mr. Marsh, looking at the same pieces of paper, saw an opportunity: he could intervene in the federal prosecutions and demand restitution. He had Amy write a victim-impact statement and hired a psychologist to evaluate her. Economists developed a tally of damages that included counseling, diminished wages and lawyer fees. The total came to $3,367,854. Even though many of the defendants have no way to pay even the smallest fine, Mr. Marsh’s efforts in the first year have earned $170,000 for Amy.
Mr. Marsh contends that every defendant should be ordered to pay the full amount, under the doctrine of joint and several liability. According to that doctrine, the recipient would stop collecting money once the full damages are paid, and those held responsible for the amount could then sue others who are found culpable for contributions.
That means the next step is to make the websites that are complicit in these crimes, by allowing these images to be posted, equally and equitably responsible to these victims. For instance, Facebook allows this abuse to continue on their site through the posting of thousands of illicit images of children every day.
