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Some cases just break your heart. Completely.
When she was eight and nine years old, she was sexually abused by her uncle in order to produce child pornography. Her uncle was prosecuted, required to pay about $6,000 in restitution, and sentenced to a lengthy prison term. The victim underwent an initial course of therapy beginning in 1998 and continuing into 1999. By the end of this period, her therapist’s notes reported that she was “‘back to normal’”; her involvement in dance and other age-appropriate activities, and the support of her family, justified an optimistic assessment. Her functioning appeared to decline in her teenage years, however; and a major blow to her recovery came when, at the age of 17, she learned that images of her abuse were being trafficked on the Internet. The digital images were available nationwide and no doubt worldwide. Though the exact scale of the trade in her images is unknown, the possessors to date easily number in the thousands. The knowledge that her images were circulated far and wide renewed the victim’s trauma and made it difficult for her to recover from her abuse. As she explained in a victim impact statement submitted to the District Court in this case:

“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. It hurts me to know someone is looking at them—at me—when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle. . . . My life and my feelings are worse now because the crime has never really stopped and will never really stop. . . . It’s like I am being abused over and over and over again.”

Doyle Randall Paroline pleaded guilty to possessing between 150-300 images of child pornography, two of which were pictures of "Amy," the victim above.

There's a federal statute, 18 U.S.C. § 2259, which mandates that in these cases, the Court must make a restitution order which "shall direct the defendant to pay the victim ... the full amount of the victim’s losses as determined by the court."

Amy asked for close to $3.4 million, consisting of nearly $3 million in lost income and about $500,000 in future treatment and counseling costs. The question for the Supreme Court last week was, how much of this is Paroline's responsibility? All of it, some of it, or none of it? Thousand of people viewed these pictures, and Paroline's not the guy who created them, after all.

I recognize that to even ask the question of what's fair to Paroline is to invert all of our natural sympathies, but we have to be guided by what Congress actually wrote and intended, and what the Constitution allows.  

Join me below the fold to see the splintered way in which this was resolved.

The Court's decision was authored by Justice Kennedy, joined by Justices Ginsburg, Breyer, Alito, and Kagan. They maintain that the statute requires Paroline only be responsible for the losses which his viewing proximately caused, because of the statutory text. But what does that mean? On the one hand, the Court rejects the idea that Paroline pay no restitution on the grounds that he was just one of many pebbles constituting the boulder of injury here, and that Amy would have been just as damaged had he personally done nothing:

If the conduct of a wrongdoer is neither necessary nor sufficient to produce an outcome, that conduct cannot in a strict sense be said to have caused the outcome. Nonetheless, tort law teaches that alternative and less demanding causal standards are necessary in certain circumstances to vindicate the law’s purposes. It would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm. And it would be nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many (and thus in many instances hurt more badly than otherwise) would have no redress, whereas individuals hurt by the acts of one person alone would have a remedy.
But on the other hand, the Court feels it cannot put Paroline on the hook for all Amy's injuries:
The victim says that under the strict logic of these alternative causal tests, each possessor of her images is a part of a causal set sufficient to produce her ongoing trauma, so each possessor should be treated as a cause in fact of all the trauma and all the attendant losses incurred as a result of the entire ongoing traffic in her images. And she argues that if this premise is accepted the further requirement of proximate causation poses no barrier, for she seeks restitution only for those losses that are the direct and foreseeable result of child-pornography offenses. Because the statute requires restitution for the “full amount of the victim’s losses,” including “any . . . losses suffered by the victim as a proximate result of the offense,” §2259(b), she argues that restitution is required for the entire aggregately caused amount.

The striking outcome of this reasoning—that each possessor of the victim’s images would bear the consequences of the acts of the many thousands who possessed those images—illustrates why the Court has been reluctant to adopt aggregate causation logic in an incautious manner, especially in interpreting criminal statutes where there is no language expressly suggesting Congress intended that approach....

Contrary to the victim’s suggestion, this is not akin to a case in which a “gang of ruffians” collectively beats a person, or in which a woman is “gang raped by five men on one night or by five men on five sequential nights.” First, this case does not involve a set of wrongdoers acting in concert, for Paroline had no contact with the overwhelming majority of the offenders for whose actions the victim would hold him accountable. Second, adopting the victim’s approach would make an individual possessor liable for the combined consequences of the acts of not just 2, 5, or even 100 independently acting offenders; but instead, a number that may reach into the tens of thousands.

It is unclear whether it could ever be sensible to embrace the fiction that this victim’s entire losses were the “proximate result” of a single possessor’s offense. Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined acts of all other relevant offenders, and in comparison to the contributions of other individual offenders, particularly distributors (who may have caused hundreds or thousands of further viewings) and the initial producer of the child pornography. Congress gave no indication that it intended its statute to be applied in the expansive manner the victim suggests, a manner contrary to the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct, not the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom the defendant had no contact.

The victim argues that holding each possessor liable for her entire losses would be fair and practical, in part because offenders may seek contribution from one another. If that were so, it might mitigate to some degree the concerns her approach presents. But there is scant authority for her contention that offenders convicted in different proceedings in different jurisdictions and ordered to pay restitution to the same victim may seek contribution from one another... The reality is that the victim’s suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution.

[The Court also raises the possibility that holding a single perpetrator potentially responsible for all damages "is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment."]

So, what's left? "Be fair," basically, is the ruling:

In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims.
And what if that means that Amy is never made whole, because so many of the men who hurt her are never prosecuted? Sorry:
The victim also argues that this approach would consign her to “piecemeal” restitution and leave her to face “decades of litigation that might never lead to full recovery,” Brief for Respondent Amy 57, which “would convert Congress’s promise to child pornography victims into an empty gesture,” id., at 66. But Congress has not promised victims full and swift restitution at all costs. To be sure, the statute states a strong restitutionary purpose; but that purpose cannot be twisted into a license to hold a defendant liable for an amount drastically out of proportion to his own individual causal relation to the victim’s losses.

Furthermore, an approach of this sort better effects the need to impress upon defendants that their acts are not irrelevant or victimless. As the Government observes, it would undermine this important purpose of criminal restitution if the victim simply collected her full losses from a handful of wealthy possessors and left the remainder to pay nothing because she had already fully collected. Of course the victim should someday collect restitution for all her child-pornography losses, but it makes sense to spread payment among a larger number of offenders in amounts more closely in proportion to their respective causal roles and their own circumstances so that more are made aware, through the concrete mechanism of restitution, of the impact of child-pornography possession on victims.

To which Justice Sotomayor, dissenting solo, says that's not enough, and it's not what Congress wanted:
When Congress passed §2259 in 1994, it was common knowledge that child pornography victims suffer harm at the hands of numerous offenders who possess their images in common, whether in print, film, or electronic form. See, e.g., Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 544 (1981) (describing the “enormous number of magazines” and “hundreds of films” produced each year depicting the sexual abuse of children, which were circulated to untold numbers of offenders through a “well-organized distribution system [that] ensures that even the small towns have access to [the] material”); Doyle, FBI Probing Child Porn on Computers, San Francisco Chronicle, Dec. 5, 1991,p. A23 (describing complaint that “child pornographic photographs” were circulating via the “America On-Line computer service”). Congress was also acutely aware of the severe injuries that victims of child pornography suffer at the hands of criminals who possess and view the recorded images of their sexual abuse. Congress found, for example, that the “continued existence” and circulation of child pornography images “causes the child victims of sexual abuse continuing harm by haunting those children in future years.” Child Pornography Prevention Act of 1996, §121, 110 Stat. 3009–26, Congressional Findings (2), notes following 18 U. S. C. §2251 (hereinafter §2251 Findings). It is inconceivable that Congress would have imposed a mandatory restitution obligation on the possessors who contribute to these “continuing harm[s],” ibid., only to direct courts to apply a but-for cause requirement that would prevent victims from actually obtaining any recovery.
Instead, she'd find each possessor jointly and severally liable for the entirety of the harm:
Child pornography possessors are jointly liable under this standard, for they act in concert as part of a global network of possessors, distributors, and producers who pursue the common purpose of trafficking in images of child sexual abuse. As Congress itself recognized, “possessors of such material” are an integral part of the “market for the sexual exploitative use of children." Moreover, although possessors like Paroline may not be familiar with every last participant in the market for child sexual abuse images, there is little doubt that they act with knowledge of the inevitable harms caused by their combined conduct. Paroline himself admitted to possessing between 150 and 300 images of minors engaged in sexually explicit conduct, which he downloaded from other offenders on the Internet. By communally browsing and downloading Internet child pornography, offenders like Paroline “fuel the process” that allows the industry to flourish. O’Connell, Paedophiles Networking on the Internet, in Child Abuse on the Internet: Ending the Silence 77 (C. Arnaldo ed. 2001). Indeed, one expert describes Internet child pornography networks as “an example of a complex criminal conspiracy,”—the quintessential concerted action to which joint and several liability attaches.
The Chief Justice with Justices Scalia and Thomas, dissent on the other side, maintaining that given the nature of this statute, they can't award restitution at all, because "pick a number" isn't justice:
I certainly agree with the Court that Amy deserves restitution, and that Congress—by making restitution mandatory for victims of child pornography—meant that she have it. Unfortunately, the restitution statute that Congress wrote for child pornography offenses makes it impossible to award that relief to Amy in this case. Instead of tailoring the statute to the unique harms caused by child pornography, Congress borrowed a generic restitution standard that makes restitution contingent on the Government’s ability to prove, “by the preponderance of the evidence,” “the amount of the loss sustained by a victim as a result of” the defendant’s crime. 18 U. S. C. §3664(e). When it comes to Paroline’s crime—possession of two of Amy’s images—it is not possible to do anything more than pick an arbitrary number for that “amount.” And arbitrary is not good enough for the criminal law....

[Amy's] loss, while undoubtedly genuine, is a result of the collective actions of a huge number of people—beginning with her uncle who abused her and put her images on the Internet, to the distributors who make those images more widely available, to the possessors such as Paroline who view her images. The harm to Amy was produced over time, gradually, by tens of thousands of persons acting independently from one another. She suffers in particular from her knowledge that her images are being viewed online by an unknown number of people, and from her fear that any person she meets might recognize her from having witnessed her abuse. But Amy does not know who Paroline is. Nothing in the record comes close to establishing that Amy would have suffered less if Paroline had not possessed her images, let alone how much less. Amy’s injury is indivisible, which means that Paroline’s particular share of her losses is unknowable. And yet it is proof of Paroline’s particular share that the statute requires.

And so to them, the majority's approach is untenable:
The majority’s proposal is to have a district court “assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.” Even if that were a plausible way to design a restitution system for Amy’s complex injury, there is no way around the fact that it is not the system that Congress created. The statute requires restitution to be based exclusively on the losses that resulted from the defendant’s crime—not on the defendant’s relative culpability. The majority’s plan to situate Paroline along a spectrum of offenders who have contributed to Amy’s harm will not assist a district court in calculating the amount of Amy’s losses—the amount of her lost wages and counseling costs—that was caused by Paroline’s crime (or that of any other defendant).

... To the extent that district courts do form a sort of consensus on how much to award, experience shows that the amount in any particular case will be quite small—the significant majority of defendants have been ordered to pay Amy $5,000 or less. This means that Amy will be stuck litigating for years to come. The Court acknowledges that Amy may end up with “piecemeal” restitution, yet responds simply that “Congress has not promised victims full and swift restitution at all costs.”

Amy will fare no better if district courts consider the other factors suggested by the majority, including the number of defendants convicted of possessing Amy’s images, a rough estimate of those likely to be convicted in the future, and an even rougher estimate of the total number of persons involved in her harm. In the first place, only the last figure is relevant, because Paroline’s relative significance can logically be measured only in light of everyone who contributed to Amy’s injury—not just those who have been, or will be, caught and convicted. Even worse, to the extent it is possible to project the total number of persons who have viewed Amy’s images, that number is tragically large, which means that restitution awards tied to it will lead to a pitiful recovery in every case. See Brief for Respondent Amy 65 (estimating Paroline’s “ ‘market share’ ” of Amy’s harm at 1/71,000, or $47). The majority says that courts should not impose “trivial restitution orders,” but it is hard to see how a court fairly assessing this defendant’s relative contribution could do anything else.

* * *
As Justice Sotomayor writes (and all the Justices agree, in their own language), this is a mess, but something Congress can fix:
In the end, of course, it is Congress that will have the final say. If Congress wishes to recodify its full restitution command, it can do so in language perhaps even more clear than §2259’s “mandatory” directive to order restitution for the “full amount of the victim’s losses.” Congress might amend the statute, for example, to include the term “aggregate causation.” Alternatively, to avoid the uncertainty in the Court’s apportionment approach, Congress might wish to enact fixed minimum restitution amounts. See, e.g., §2255 (statutorily imposed $150,000 minimum civil remedy). In the meanwhile, it is my hope that the Court’s approach will not unduly undermine the ability of victims like Amy to recover for—and from—the unfathomable harms they have sustained.
The law's not perfect, and there is no true way to restore Amy to where might have been had none of this happen. We'll see what Congress does next.

Originally posted to Adam B on Tue Apr 29, 2014 at 12:02 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Thanks for the legal synopsis (4+ / 0-)
    Recommended by:
    ban nock, thomask, AnnieR, Sharon Wraight

    We could also establish a fund to help victims of child porn, to which all perpetrators would have to contribute, and their culpability adjudged the same as if their deeds were apportioned in court. Maybe in this way the victim would not have to bear years of litigation.

    Here is an AP article about the ruling. Note that it states the victim was 8 or 9 years old when she was RAPED and then the images were distributed online.

  •  Very interesting case (1+ / 0-)
    Recommended by:
    Adam B

    And one that one would seem to prove the adage that "hard cases make bad law."

    I'm not really sure how lower courts are supposed to apply the majority's reasoning in assessing damages in such a case.  What is the trier of fact to do?  Does a victim get more damages if a defendant possesses more than one image?  Should it matter that the pornography is a video (or even a photo) that a defendant has viewed hundreds of times?

    This is one of those times I really hope Congress steps in to change the law, because if any case cries out for better statutory language, this is it.

    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

    by FogCityJohn on Tue Apr 29, 2014 at 05:34:52 PM PDT

  •  I'm (reluctantly) inclined to agree w/ Roberts (0+ / 0-)

    The Court's solution seems unworkable. And I'm not convinced that Justice Sotomayor's solution is justice either--bankrupting Paroline and garnishing his wages for the rest of his life when 70,000 other people also contributed to Amy's injury seems somewhat arbitrary.

    Congress should revise the law to set statutory damages (say $5,000 per image or actual harm attributable to the defendant), or even better, fine everyone convicted of possessing child porn an amount based on the gravity of the offense and ability to pay, with the funds being placed in government trust fund for the victims of child pornography.

    •  I didn't discuss Sotomayor's entire opinion (1+ / 0-)
      Recommended by:

      She advocates for a payment schedule instead of a lump-sum award:

      Accordingly, in the context of a restitution order against a wealthy child pornography possessor, it would likely be in the interest of justice for a district court to set a payment schedule requiring the defendant to pay restitution in amounts equal to the periodic losses that the district court finds will actually be “incurred by the victim,” §2259(b)(3), in the given timeframe. In this case, for example, Amy’s expert estimates that she will suffer approximately $3.4 million in losses from medical costs and lost income over the next 60 years of her life, or approximately $56,000 per year. If that estimate is deemed accurate, a court would enter a restitution order against a wealthy defendant for the full $3.4 million amount of Amy’s losses, and could make it payable on an annual schedule of $56,000 per year. Doing so would serve the interest of justice because the periodic payment schedule would allow the individual wealthy defendant’s ultimate burden to be substantially offset by payments made by other offenders,* while the entry of the full restitution award would provide certainty to Amy that she will be made whole for her losses.
      * As the facts of this case show, the offset would be significant. Between June 2009 and December 11, 2013, Amy obtained restitution awards from 182 persons, 161 of whom were ordered to pay an amount between $1,000 and $530,000. See Restitution Awards for Amy Through December 11, 2013, Lodging of United States. If these offenders (and new offenders caught each month) were instead ordered to pay the full amount of restitution in periodic amounts according to their financial means, a wealthy defendant’s annual obligation would terminate long before he would be required to pay anything close to the full $3.4 million. For once a victim receives the full amount of restitution, all outstanding obligations expire because §2259 does not displace the settled joint and several liability rule forbidding double recovery.
      •  After giving it some more thought, (1+ / 0-)
        Recommended by:
        Adam B

        my arbitrariness concerns might be amplified here, in that joint-and-several liability usually apportions liability between easily identifiable parties.  

        But I guess J&S liability can be inherently arbitrary--the judgment-proof driver who strikes the victim and the successful surgeon who makes an error while caring for him are J&S liable for the victim's injury or death, but we know who'll end up paying--as can tort damages in general--if I maim Brad Pitt, I could easily be liable for $200 million in economic damages; if I injure a regular person my liability could just be the cost of medical treatment.

    •  um, $5,000 ??? (0+ / 0-)

      Try starting at $50,000. In fact, I generally agree with your proposed remedy of a trust (stated myself differently elsewhere) but $5,000 is unrealistically low.

      And we are we to be more concerned with unfairly causing financial duress to child pornographers than providing some restitution to their victims?

      I get your underlying point, but I'm having difficulty with the "fairness" of a person that has to live with harm for a lifetime regardless verses getting one's wages garnished.

      Surely people who go to great lengths to commit and conceal what they clearly understand to be illegal activities in a bonafide criminal conspiracy that harms children in the worst sorts of ways should be behind their victims in the line for fairness and justice.

      Maybe I'm over-reacting as a parent, but I have to say if it happened to my kid and the end was a $5,000 fine so co-perpetrators wouldn't have to feel the pinch, I'd have to conclude the system had failed, as it seems to be this unfortunate woman.

      No one is coming to save us, the future is in our hands.

      by koNko on Sun May 04, 2014 at 07:21:18 AM PDT

      [ Parent ]

  •  I am with Justice Sotomayor on this (16+ / 0-)
    Child pornography possessors are jointly liable under this standard, for they act in concert as part of a global network of possessors, distributors, and producers who pursue the common purpose of trafficking in images of child sexual abuse. As Congress itself recognized, “possessors of such material” are an integral part of the “market for the sexual exploitative use of children."

    The Price of a Stolen Childhood

    Thank you for this diary.

    Be sure you put your feet in the right place; then stand firm. ~ Abraham Lincoln

    by noweasels on Sat May 03, 2014 at 08:17:17 PM PDT

  •  The Court got it right (9+ / 0-)

    The uncle was the true perp. Sure, he went to prison, but $6000 of restitution from him was awfully low.  And by the same token, having Paroline pay 500 times as much, because he was the one jerk who got caught in posession, was too high, very disproportional.  There should be efforts to collect from a broader number of perps, and to also focus on the ones who create it.

    •  or perhaps fix a statutory minimum (1+ / 0-)
      Recommended by:

      Say $5000/ image to go into a victim restitution

      then individual victims apply to the fund for
      medical losses and therapeutic support.

      •  that makes a lot more sense IMO (2+ / 0-)
        Recommended by:
        patbahn, Adam B

        or simply just add it as a mandatory minimum fine for possession of child porn.  

        But holding one guy liable for millions of dollars because they viewed child porn? There's a wide range of folks who view child porn, from the accidental to the curious to the guy who has tens of thousands of images.  I've prosecuted/defended the entire range.

        They aren't all created equal.  I say make the person who uploads child porn liable perhaps, to me that's a lot more actual damage than simply viewing, and the fairness argument is tremendously lessened.

        •  i always fear that an excellent setup (0+ / 0-)

          is to email child porn to someone.

          The laws having strict liability,  it would be easy enough
          to set it up so the sender is never traceable
          yet, the local cops could ruin the recipient.

          we had a case of a local school administrator
          confiscates some cell phones from students for sexting.
          does as instructed, sends image gallery dumps to
          central HQ for "Adjudication". He ends up getting indicted
          for child porn.

          took 2 years and 80K to get to a jury, which dismisses it.

    •  The uncle might have abused her (2+ / 0-)
      Recommended by:
      Skyye, Errol

      under any circumstances, but pornography is a business, and it's unlikely this continuing harm would have happened if there hadn't been a network of consumers and providers of child pornography.

      He got jail time for his crime, but the ongoing damage would have been less if there hadn't been such a market for the product.

      It's kind of like the need to punish johns, not just prostitutes. Sexual exploitation is not a victimless crime in any circumstances, but when children are involved the culpability is greater.

      Thanks Adam. I had not known the details of the case, and you have helped me to understand the issues involved in the decision. I agree with Sotomayor in general, though I'm not entirely certain how joint and several culpability works.

      We need a world in which we ask "What's happened to you?" more and "What's wrong with you?" less. (From a comment by Kossack nerafinator)

      by ramara on Sat May 03, 2014 at 09:33:42 PM PDT

      [ Parent ]

      •  A Business? Not exactly... (0+ / 0-)

        As I understand it, these images are generally not being bought and sold at all.  They are shared on a non-profit basis among like-minded individuals via anonymous forums.

        •  That was not clear in this case (0+ / 0-)

          The kiddie porn business works both ways.  The law predates the widespread use of the Internet.  In that period, it was mostly in the form of magazines or other printed matter, sent by mail, bought and paid for.  So if you were in possession of a magazine, it was highly likely that you paid someone for it, and that clearly contributed to the crimes involved in its production.

          For good measure, the criminal statutes threw in an adder for using a computer. This was when computers were still not as widespread, were a bit scary, and computer crime (breaking into bank or government computers) was a new fear for the newsmongers to raise.

          But with the web, there is not necessarily money changing hands.  Pictures can be shared; web sites can be free.  So while one can argue that any demand encourages supply, it is arguably not the same thing as sending money to the producer.  It is not obvious from the article if Paroline paid any money to anyone for the pictures.

      •  punishment for child porn (0+ / 0-)

        is pretty strong already.  I don't think this is a we treat child porn too lightly so they keep doing it.  The folks who are the true deviants can't help themselves, it's a sickness.  They are going to do it anyways.  The folks who are curious it might stop, but generally those folks are too dumb.

        I don't see how you can hold a guy who views a pic one time liable for the entirety of someone's life before he viewed (but after others viewed it) and through to death.

        I don't have a problem with some type of fine payable to a victim's fund though.

        •  Viewing one time (1+ / 0-)
          Recommended by:

          Under federal law, there is an affirmative defense for viewing a pic one time. The vast majority of folks prosecuted federally for these offenses are large scale collectors and traders...the deviants you talk about who can't help themselves. But this isn't about the deviants. It's about the victims and how the deviants' sick world affects them every single day. Every day those victims live in terror because they think that they are being recognized by strangers who watched the videos of their rapes.

          •  well my understanding is (0+ / 0-)

            they generally require 3 or more images (or is it more than 3 images?).

            And they usually go after the bigger guys.  Of course, I don't think this ruling is limited to Federal convicts is it?  So one would think someone convicted under state law would apply as well.

            I know in the military we don't have a minimum number of images, so all it technically takes is one.  We don't usually have someone with just one, but it is not infrequent that we try folks caught with high single digits or teens or well under 100.

    •  Can you provide us a list of names? (0+ / 0-)

      Just curious.

      No one is coming to save us, the future is in our hands.

      by koNko on Sun May 04, 2014 at 07:35:27 AM PDT

      [ Parent ]

  •  The cost is not born by one defendant (1+ / 0-)
    Recommended by:

    , it is born by the defendant's insurance company. So in a sense, the cost is born by many people who may or may not have had possession of these images. Because the defendant is only one of many is irrelevant. The end result of a large settlement will be market based solution, which would probably be better than a criminal court solution to potential victims. If holding porn becomes a real liability, insurance companies will raise rates on, or refuse to insure these perverts. Without insurance, the perverts would not have adequate funds to protect themselves in court. Fewer people would be willing to expose themselves to this risk, reducing market demand for these images.
    Insurance companies are probably pushing hard to protect themselves against this liability exposure, primarily because it could be hard to protect themselves from closeted perverts seeking insurance. That in itself explains the way this ruling came out the way it did.
    On the other hand, it should not be that hard to contractually limit liability risk from perverts. Just a little more work for the insurance companies.

    Power tends to corrupt; absolute power corrupts absolutely - Lord Acton

    by Shishkabugs on Sat May 03, 2014 at 08:35:39 PM PDT

  •  Victim compensation fund? (4+ / 0-)

    These criminals often have collections of photos of hundreds or thousands of children, few of whom have been identified by law enforcement.

    Why not require these criminals to pay into a fund for all victims, identified and as yet unidentified? As victims are identified, there already would be a victim compensation fund available to help each of them.

    I'm not thinking about this from the direction of many criminals harming one child, but each criminal harming many children. He should pay a large amount of compensation because he participated in hurting many, many, children.

  •  between the 8th amendment and BMW v gore (1+ / 0-)
    Recommended by:

    it's hard to push these kinds of fines.

  •  we try merely to be a nation of laws (2+ / 0-)
    Recommended by:
    smartalek, Australian2

    ruled by and makers of law.

    even those laws seeming to be simple and clear show that it is not, and cannot be, wholly based upon the wording of a law. and breaking hearts can reduce the finest of judges or justices to acceptance of the fact that, with some laws, it is the rule of unwritten law which carries the most weight.

    Atticus Finch, for instance, watched the law force him to bow to the sad responsibility of a defense which resulted in his client's being lethally trapped, and of informing his client's wife that she was now a widow.

    TRAILHEAD of accountability for Bush-2 Crimes? -- Addington's Perpwalk.

    by greenbird on Sat May 03, 2014 at 09:08:55 PM PDT

  •  Given the clear difficulty (5+ / 0-)
    Recommended by:
    Vetwife, grollen, Skyye, a2nite, koNko

    in establishing appropriate restitution, as if ANY kind of restitution would give this woman her childhood back, maybe what Congress should be doing is addressing the whole issue of sexual crimes, and lessening their incidence.

    When we can't even get the US Military to take the problem seriously, there will continue to be victims, and those victims will have no peace.

    I hope that the quality of debate will improve,
    but I fear we will remain Democrats.

    Who is twigg?

    by twigg on Sat May 03, 2014 at 09:15:13 PM PDT

    •  what would constitute taking the problem seriously (1+ / 0-)
      Recommended by:
      Adam B

      in your mind?

      Making special victim prosecutors who are hand-selected and trained to only prosecute sexual assault?
      Changing the law to make sex assault easier to prosecute?
      Making special counsel to advocate victim's rights?
      Having training in sexual assault mandatory multiple times a year?
      Making how well an officer deals with sexual assault a mandatory part of every officers evaluation report?

      Because all those have been done.  So what else? Take it away from the commanders yes? Give it to the attorneys? You know the attorneys will then look a lot like the civilian world, where a LOT FEWER cases will actually be tried.

      I've seen the military dealings with sex assault and the civilian world's dealings...yes, only one of them is "taking it seriously" but it apparently isn't the one you seem to think.

  •  Tipped & rec'ed (1+ / 0-)
    Recommended by:

    nosotros no somos estúpidos

    by a2nite on Sun May 04, 2014 at 04:06:01 AM PDT

  •  I see this is a misuse of joint-and-several (0+ / 0-)

    It's not one offense with multiple partially but necessarily responsible parties. It's many discrete offenses, certainly with one cumulative victim impact, but the marginal significance of each offense does not rise to the level of making the offender responsible (in my opinion) for making good the whole harm.

    It's not the side effects of the cocaine/I'm thinking that it must be love

    by Rich in PA on Sun May 04, 2014 at 05:36:48 AM PDT

    •  Sorry, I mean Sotomayor's dissent! (1+ / 0-)
      Recommended by:

      The actual decision sound OK to me.

      It's not the side effects of the cocaine/I'm thinking that it must be love

      by Rich in PA on Sun May 04, 2014 at 05:37:48 AM PDT

      [ Parent ]

    •  I think the essence of the problem (0+ / 0-)

      Is it does not quite fit the traditional conditions of joint-and-several so it is difficult/impossible to apply that.

      Do you have links to law on any comparable situation?

      Seriously, the only comparable thing that come to mind for me is cases of wartime atrocities unaccountable to individuals other than the ones caught and prosecuting some as the war is on-going.

      It really does present a vexing problem that asks, IMHO, in a fixed minimum restitution high enough to provide reasonable relief.

      No one is coming to save us, the future is in our hands.

      by koNko on Sun May 04, 2014 at 07:47:39 AM PDT

      [ Parent ]

  •  Congress? Really? (1+ / 0-)
    Recommended by:

    The idea that this would be resolved in advance for all cases in a wise way by Congress is ludicrous.  The actual decision is reasonable - judges will just have to do their best.  Neither Congress nor the legal system is going to be able to compensate for all injustice.

  •  Thanks for posting this. (3+ / 0-)

    Indeed it is a quagmire given the way the law is stated and I find myself (a) logically agreeing with points in each of the 3 opinions and (b) the consensus view that Congress needs to fix it.

    So the question is: how?

    As the Father of a 6 y/o girl, I have to say my heart is with the idea that for a crime that is a life sentence of torture for some victims and ultimately a death sentence for others I don't have much problem with viewing this as the gang rapist that got caught, particularly when the nature of the crime is, as a practical matter, unending. In fact, we can never catch all the perpetrators of all crimes so deal with the ones we do, correct?

    However, I realize that while the above works fine to assign guilt to an individual for their own acts, it's not a solution at all for the restitution problem. Toward that end, I think the majority opinion points in a direction that suggests the law specify a set minimum sum for restitution per victim per offender if that is legally possible, because it at least establishes a standard and a mechanism to do justice in a "fair" way if it is possible to apply such a term.

    And the sum must be sufficient that (a) reasonably provides some relief, verses a token, and; (b) is reasonably punitive.

    "If I were King ..." ... well, it wouldn't happen, but if it it did, perhaps the best approach would be to have a portion of the restitution paid into a general fund for victims, because I believe, in reality, many of the convicted would not have the resources to meet the obligations set by the court and then the victims in question are nowhere. But I doubt that passes legal muster.

    Quite interested in others ideas, not sure mine are at all legal or reasonable.

    Oh, and I'm all for citizens reporting this shit where they find it and intervening.

    And I think it's strange that hackers that launch DDoS attacks against kiddie porn sites risk going to prison for decades under CFAA while we split hairs about over-charging pervs.

    No one is coming to save us, the future is in our hands.

    by koNko on Sun May 04, 2014 at 07:06:31 AM PDT

  •  All three opinions are reasonable positions, (0+ / 0-)

    in my view, though I have to say I agree with Sotomayor the least -- the suggestion of trying to make one person liable for everything just does meet any notion of fairness to me, even if on a practical level it would in some ways be the most workable.

  •  The reality is that money is inadequate (1+ / 0-)
    Recommended by:
    Adam B

    That is true even for, say, a car accident that leaves someone with one leg amputated, or with a head injury that leaves them forever impaired, or with a river or acre of land or Gulf of Mexico that is polluted with toxic chemicals and may or may not ever recover. It is even more true where the injury (from the porn, not the rapes) is emotional and inchoate, and it isn't clear that any amount of therapy will ameliorate it.

    So in all these cases, translating "permanent disability," "temporary disability," and "pain and suffering" into dollars is an essentially arbitrary task. We ask juries to do it all the time, but it is distinctly weird. (Think about how other cultures would view this -- indigenous peoples, for example.)

    So asking courts to pick some arbitrary number in pornography damages claims isn't really any harder than what happens every day in other types of damages cases.

  •  Sotomayor! wow! (0+ / 0-)


  •  Requirement of proving a real person? (0+ / 0-)

    From viewing the progress in digital editors over the last few years, I wonder if we will reach the point in the next decade where a defense to the seizure of Child Pornography will be that the images are not actually those of real children. This will either be that the image is a combination of multiple real children, that the image is a youthened adult photo (Yes, going from 18 to 10 will be difficult, but 18 to 14 is less so) or simply computer generated.

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