- The Washington Times - Monday, January 20, 2014

The Supreme Court will delve into the sordid world of child pornography this week with a case that could break legal ground in the fight to curb juvenile porn — whether victims can seek full damages not only from their abusers but also from the people who produce, distribute and possess the illegal images.

The case, which the high court will hear Wednesday, has the potential to rock the secretive world of child pornography. Few people’s fortunes could withstand rulings that require multimillion-dollar payouts to dozens, even hundreds, of victims.

Forcing offenders to pay full restitution to a victim “does nothing but good,” said Donna Rice Hughes, president of Enough is Enough, one of the anti-pornography advocates closely watching the case. It is well-known, she said, that every time child pornography is viewed, “the victim is re-victimized.”

But most federal courts have ruled that a defendant can be held responsible only for specific harms caused by his or her specific conduct, greatly limiting the liability of many of those who must pay damages.

The case centers on “Amy Unknown,” an unidentified woman who is seeking $3.36 million in lifetime restitution from Doyle R. Paroline, a Texas man who was caught with two of Amy’s images in his child pornography collection.

In 1997, when she was 8, Amy was repeatedly abused sexually by her uncle, Eugene Zebroski.

He photographed her, and soon “extremely graphic” pictures of Amy’s molestation and rape were being widely shared on the Internet. Some 35,000 images of her have been found in 3,200 child pornography cases, according to the National Center for Missing and Exploited Children.

Amy has sought damages in dozens of criminal cases involving these images and won awards of various, often small, amounts. She estimates that the damage to her over her lifetime is worth $3.36 million because she is unable to hold a job as a result of anxieties over the widespread viewing of her photos.

“Every day of my life, I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again,” she said in a 2008 victim impact statement.

The 1994 Violence Against Women Act contained a provision for mandatory restitution for the “full amount” of losses of sexual abuse victims. The issue before the Supreme Court is what relationship the government must establish between the victim and a defendant in order to recover restitution. At its most far-reaching, Amy could seek the full damage amount from every Internet user who downloaded her image.

Amy’s case

In 2009, Paroline pleaded guilty — and was sentenced to prison for 24 months — for possessing some 300 images of child pornography on a computer. Two of the images were of Amy, but a court ordered him to pay the full amount of the losses Amy claimed.

But when Amy sought to collect, a federal judge said Paroline owed her nothing because she couldn’t prove that his viewing of her photos directly caused her suffering. In October 2012, by a 10-5 vote, the 5th U.S. Circuit Court of Appeals overturned that decision and, citing the Violence Against Women Act, said Paroline must pay Amy’s full restitution amount, which was based on an estimate of damages by a psychologist hired by Amy’s legal team.

Paroline, represented by Houston lawyer Stanley G. Schneider and colleagues, appealed to the Supreme Court.

They argued that Paroline is constitutionally protected from an unreasonably large restitution payment — especially in a case like his, in which the criminal and the victim are unknown to each other. There has been no evidence that “any of Amy’s losses” are “traceable to Paroline’s conduct,” Mr. Schneider said in a brief.

“An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate,” according to the brief.

The Obama administration has tried to take a middle ground, arguing that victims like Amy deserve something from porn viewers such as Paroline, but not a lifetime’s worth of restitution from each offender. The trial judge, the government argues, is the best arbiter of what the amount should be.

“The real question is whether … a court must impose all of Amy’s aggregate losses on each defendant,” Solicitor General Donald Verrilli Jr. told the court in a filing. “On that issue, Amy and the government take different views.”

Support for the victim

Amy is supported by more than 20 friend of the court briefs from state attorneys general, domestic violence activists and anti-pornography advocates. In addition, a bipartisan group of seven U.S. senators who supported the 1994 Violence Against Women Act told the high court that they intentionally wrote the law so that child pornography victims like Amy could collect “generous” restitution and that the 5th Circuit “decided this case correctly.”

Amy’s attorneys, Paul G. Cassell and James R. Marsh, argued that criminals like Paroline are responsible for creating “a global market for the sexual abuse of children,” and Amy, as a victim of child pornography, does not have to figure out what part of her losses resulted from any particular defendant.

The attorneys added that criminals can cover their restitution payments by seeking money from other criminals who saw images of a victim, using the familiar legal scheme of “joint and several liability.” The goal of restitution, Mr. Marsh said, is to make victims “whole,” not force them to spend their lives chasing down every child pornography criminal to extract payment.

Paroline’s attorneys countered that such shared liability would be a “procedural nightmare” and registered sex offenders “cannot and should not” be asked to have contact with one another.

Courts to date have awarded restitution in 182 cases, and Amy has collected $1.6 million; but $1.2 million of that total — 75 percent — came from just one defendant, according to The Associated Press. Other awards have been much smaller, and some judges have ordered no restitution at all, Mr. Marsh said.

Since until the 5th Circuit Court ruled in her favor, Amy has been “forced to go around the country endlessly seeking defendants with assets,” he told the AP. “It’s endless, and it takes a toll on victims.”

Copyright © 2017 The Washington Times, LLC. Click here for reprint permission.

blog comments powered by Disqus

 

Click to Read More

Click to Hide