As a guardian ad litem (GAL) and domestic relations mediator in New
Mexico, I take special interest in unusual court cases involving
children. In the September 2012 ABA Journal, Lorelei Laird details the plight of several young women in their 20s who were sexually abused as small children by predators who then put pornographic images of the abuse on the Internet for others to access and enjoy. Laird poses the question of "should those who download child pornography pay the victims and, if so, how much?"
Several girls discussed have been identified as victims by the government under the Crime Victims' Rights Act, so must receive notice when anyone is arrested by federal authorities for possession their child pornographic images. At least one of the girls had, through extensive therapy, managed to move forward in a positive direction, until she learned the images had been placed on the Internet. Today, she has suffered serious backsliding into depression and addiction, as she is faced with mounds of daily DOJ notices that people are accessing the images of her "agonizing abuse."
The girls discussed are or have been represented by attorney James Marsh of New York City. What the girls want--removal of these pictures from the Internet--obviously cannot be provided. However, Marsh seeks full restitution under the Violence Against Women Act (VAWA), to obtain funds for treatment of the ongoing trauma that results from their continued exploitation and abuse via Internet viewings. VAWA mandates restitution for "the full amount of the victim's losses," including "costs" such as
medical bills, attorney fees and lost income, and "any other losses
suffered by the victim as a proximate result of the offense."
Lair reports that Marsh also seeks the full amount owed, from every
defendant against whom he files suit. VAWA permits joint and several liability among defendants in the same case, but is silent as to this
situation.
Marsh has apparently had mixed results. The 5th Circuit court of Appeals ruled in 2011 (in re Amy Unknown) that the proximate cause limitation only applies to the catchall losses, not actual costs such as medical bills and attorneys fees. The 1st, 2nd, 3rd, 9th, 11th, and D.C. Circuits, in contrast, have all found the proximate cause requirement does apply to the actual costs. However, in applying the proximate cause standards, the courts have sometimes found proximate cause existed under the facts or, expressly left the door open for such a finding in future cases.
As to the joint and several liability issue, the courts are struggling how to "divide the pain" and costs between defendants. Although Marsh files for full restitution, the courts are tending to "develop[] a flat-rate scheme[.]" The Eastern District of California has awarded $3,000 per victim, while the Western District of Washington has awarded $1,00 per image (which aw later reduced to zero by the 9 Circuit). Since Laird wrote her article in September, the Fifth Circuit ruled that "Amy" was entitled to restitution from both a Texas resident and a New Orleans resident, each of whom had pleaded guilty in separate cases. See AP, "Court OKs Restitution for Child Porn Victims," reprinted in Albuquerque Journal, Oct. 2, 2012.
One defense lawyer is quoted to decry the unfairness that a person innocently viewing child porn, who does not himself abuse or photograph the children, should be subject to restitution. Other critics, while not disputing "that child pornography victims have suffered real harm[,] ..raise a mix of practical, philosophical and legal concerns about holding defendants responsible for harm to victims they've never met." Can't say my heart goes out to them. In any event, in today's cyberspace era we will need to figure out a way to hold defendants responsible for harms they cause via modern communication networks, even if to victims they've never met--think identify theft, cyberfraud, and the miscellaneous actors/cogs in the global human trafficking maze.
If you are
interested in child-related mediation or GAL (guardian ad litem) services,
please contact Pilar Vaile, P.C. at
(505) 247-0802, or info@pilarvailepc.com.
