Monday, January 20, 2014

TX - Supreme Court takes up limits of child porn victim restitution in case involving East Texan

Child Porn
Original Article



WASHINGTON - It’s been more than 15 years since Amy was raped and photographed by her uncle, who then later posted the prints onto the internet. Even though her uncle has long been convicted, Amy lives knowing that the images are viewed over again by thousands of people all over the world.

One of those people was _____, an East Texas man who downloaded 280 pornographic pictures of children onto his laptop, including two of a young Amy.

_____ pleaded guilty and was sentenced to 24 months in prison. But courts have disagreed on whether he and other viewers owe Amy direct compensation for her suffering.

On Wednesday, the U.S. Supreme Court will hear arguments on whether _____ and others who viewed the pictures are responsible for paying Amy’s compensation for a lifetime of suffering.

There are so many fulcrums on which this case could tip, and which of those will be the focal point of arguments and ultimately the court’s decision is very hard to predict,” said Douglas Berman, a law professor at Ohio State University who runs a blog on legal sentencing.

Amy – a pseudonym used to protect her identity -- contends she needs about $3.4 million, mostly to cover lost future income and counseling fees. In court documents, she said working is difficult because she fears running into people who may have seen the photos. According to the National Center for Missing and Exploited Children, Amy’s image has been found more than 35,000 times in at least 3,200 child pornography cases.

Amy wants _____ to be responsible for the full amount, which her lawyers argue he can try to collect from others who viewed or sent the pictures.

The bottom line is that _____, like many others, caused Amy’s injuries,” James Marsh, one of Amy’s lawyers, said in an email. “There is no way to separate him from the crowd of people committing these crimes; it’s all for one and one for all.”

Marsh added that _____ is still protected from “financial ruin” by the law and will only have to pay a portion of the $3.4 million if he is found liable for the entire sum.

If Amy’s lawyers are successful, the case could set a bold new precedent for victims of child pornography: joint and several liability. Instead of forcing a victim to chase down thousands of individual criminals, this method would hold a criminal responsible for the entire burden and encourage him to locate others who harmed the victim to help pay the debt.

But _____’s lawyers disagree. Amy certainly was harmed, but not directly by _____, they argue. Instead, they believe her uncle and the fact that the pictures are publicly available are to blame.

None of the damages for which Amy is now seeking restitution flow from anyone telling her specifically about Mr. _____ or telling her about his conduct,” his lawyers wrote in a brief.

In 1999, a judge sentenced Amy’s uncle to 10 years in prison, but only ordered him to pay for all of Amy’s counseling to that point, about $6,300. In that light, _____’s lawyers contend that it would be extreme for him to pay for Amy’s full losses, a violation of the Eighth Amendment’s protection from “excessive fines.”

Amy’s uncle who sexually abused her and created the child pornography to distribute on the Internet was ordered to pay $6,000 in restitution,” _____’s lawyers wrote. “It is incongruous that persons who simply possessed two of the images he created would be ordered to pay $3.4 million in restitution.”

The federal government, which assists victims in recovering restitution, agrees that _____ should not pay the entire restitution but says he should be held responsible for some of Amy’s damages.

One challenge for the Supreme Court will be interpreting two words from of a section in the 1994 Violence Against Women Act. The law says victims should receive full compensation but goes on to define eligible losses in a list.

The last of those points is a catch-all, allowing for anything considered “a proximate result” of a crime. The court must decide how broadly Congress meant to apply that standard.

Both sides are hoping that the Supreme Court will resolve conflicting opinions by the nation’s lower courts in similar cases.

Another piece of the puzzle: the Internet. The 1994 law passed long before the advent of high-speed Internet, which now makes the transfer of any image almost instantaneous. Now, Berman said, “literally anyone with a laptop they bought in the past 10 years and the Internet connection can not only easily do a couple Internet searches and find child porn … or stick a smartphone somewhere it shouldn’t be and start producing it, too.”

Now, the justices must decide how to apply a pre-Internet law to a high-speed world.

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