Child Pornographers Must Pay

DEMachina.

Posted to Legal on Fri Feb 05, 2010 at 02:48:37 PM EST (promoted by port1080). RSS.

The victim of one of the net's most famous series of child porn movies, known as "The Misty Series," has begun a legal campaign to claim restitution from every single person who has downloaded an image or movie depicting her.

The victim, now 19 and identified solely as "Amy" in court records and the press, was sexually abused by her uncle starting at age 8.  The uncle is now in jail, but copies of the movies and images of her abuse continue to circulate around the Internet.  Over 800 people have been charged with possessing the images.

Her new round of cases began when, as required by federal law, Amy was notified each time an image of her as a child was found on a defendant's computer.  Her lawyer then came up with an idea: seek restitution from each defendant.

The Violence Against Women Act^† (codified at 42 U.S.C. § 13981) requires restitution for the victims of sex crimes.  (Note that a different part of the law was ruled unconstitutional on federalism/Commerce Clause grounds; see United States v. Morrison).  So, using the notifications from the Justice Department, Amy's lawyer began intervening in those cases and asking for restitution.  He hired a psychologist to examine her, and economists to tally the financial cost to her (the total came to approximately $3.4 million).  Amy wrote a victim impact statement.

The results have been mixed.  The first victory came from a civil suit in Connecticut, where even then the judge admitted it was a new frontier.  Since then, Amy's lawyer has automated the process, and sent requests to intervene to 350 U.S. Attorneys prosecuting people accused of possessing parts of The Misty Series.  Some judges have granted restitution, others have refused.  After about 20 cases, Amy and another victim have collected $170,000 so far.  One judge in Florida ordered a single defendant to pay the full $3.4 million, although that case is on appeal (and even if she wins, the defendant is serving a 50-year sentence and has few assets).

Commentators and the government itself are also divided.  After the Connecticut ruling, Jonathan Turley, a law professor at George Washington University wrote in his blog that the ruling was "highly questionable" and "stretches personal accountability to the breaking point."  He and others (such as Corey Yung, a professor at the John Marshall Law School in Chicago) argue that the harm caused by possession of child pornography, as opposed to the actual production and abuse of children, is too attenuated to warrant restitution.  

A lawyer with the Administrative Office of the Courts argued last summer that the law did not support restitution in these situations; an assistant attorney general in the Dept. of Justice's criminal section issued a letter in October saying that they do not agree.

Still another perspective is that restitution might reverse the trend among judges, legislatures, and the public to steadily increase jail time for sex offenders, particularly those whose victims are children.  For example, in late January, the California Supreme Court ruled that a ballot initiative allowing the indefinite extension of sentences for sexually violent predators might violate Equal Protection.^‡

It's hard to find sympathy for the offenders in these cases, to be sure, but the law (and especially the Constitution) does not suddenly disappear when sex crimes are involved.  Still, restitution does have its benefits: it's a further disincentive to the producers, who have been paying restitution for years, and perhaps to the possessors, depending on how these cases eventually turn out (it seems likely they'll end up at the Supreme Court sooner or later).

† Am I the only one who think this is a terrible name for a law?
‡ Might!?