Supreme Court Denies Child Porn Victim Full Restitution

Earlier this week, the Supreme Court issued a decision in Paroline v. United States. The case raised an emotional issue — the right of a victim of a child pornographer to compensation for the pain and suffering the dissemination of her images caused — and then wrapped it up in a lot of legalese about restitution and causation and statutory construction. And what comes out of it is a simple conclusion: that Congress needs to act if we want to create a solution.

Here's what happened: the complainant, a woman the courts called only Amy, was molested by her uncle at eight years old. Her uncle took pictures. He was convicted of the crime, and was ordered to pay Amy $6,000. She went into therapy and was doing better, until the year she turned seventeen, when she learned her pictures were circulating on the internet. As Amy would later tell a court:

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... It's like I am being abused over and over and over again.

The court Amy was talking to was not her uncle's, though. It was the judge in a case against one Doyle Randall Paroline, a man who had pled guilty to counts of possessing child pornography. Among his images were pictures of Amy. And under a process in criminal law known as restitution, Amy had asked the court to award her $3.4 million in damages.

Does that sound like a crazy amount? If it does, keep in mind that what Amy was trying to claim from Paroline was the damages for all the instances of her image being distributed online. Emily Bazelon wrote about this case for the New York Times Magazine back in 2013, and she describes the theory of liability that Amy's lawyers had behind that claim:

Marsh put together a lifetime claim for Amy totaling almost $3.4 million. With the crime notices arriving in the mail, Marsh started tracking men charged with possession of her pictures. He looked, in particular, for wealthy defendants. He planned to use the concept of joint and several liability to argue that each defendant should be on the hook for the full amount of his client's damages — that is, for millions of dollars. Joint and several liability is often used in pollution cases: when several companies dump toxic waste in a lake over time, a plaintiff can go after the company with the deepest pockets, and a judge can hold that single company responsible for the entire cost of the cleanup — with the understanding that it's up to that polluter to sue the others to pay their share.

The problem with the theory is that courts haven't been buying it. Amy was denied by the trial court and the Court of Appeals. And on Wednesday, the Supreme Court didn't buy the argument either.

The Court split, ultimately, along unusual lines. In the majority were Justices Kennedy, Ginsburg, Alito, and Kagan, a bit of a motley crew. Their decision boiled down to the difficulty of proving that Paroline's having the pictures "caused," in a legal sense, all of Amy's injuries. In brief, they agreed it probably caused some of it, but couldn't find the basis in the text of the relevant law (here shorthanded as "§2259," click the link to read the text):

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 but where it is impossible to trace a particular amount of 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.

The upshot of the majority's ruling is that under this formula a victim like Amy would have to keep filing restitution suits against each and every person found to be in possession of her pictures. And not only would that be procedurally annoying and deeply expensive just in terms of lawyer time and energy, it seems terribly unlikely to prevent her from the likelihood of having to relive the trauma every time she has to circle back to a new court to collect her money.

And if that seems overly complicated to you, in fact it seems that way to the victim too. Through her lawyer, Paul Cassell, she gave the following reaction to the ruling:

The Supreme Court said we should keep going back to the district courts over and over again but that's what I have been doing for almost six years now. It's crazy that people keep committing this crime year after year and now victims like me have to keep reliving it year after year. I'm not sure how this decision helps anyone to really know if, when, and how restitution will ever be paid to kids and other victims of this endless crime. I see that the Court said I should get full restitution 'someday,' I just wonder when that day will be and how long I and Vicky and other victims will have to wait for justice.

Reasonable though that sounds, the fact is that the case could have gone worse for her. Roberts, Scalia, and Thomas got together on a dissent where, in that occasional sociopathic tendency the right wing of the court has, they held that because any amount awarded to Amy would be "arbitrary," she should get nothing.

Even should you not share my view that the right wing of the court occasionally descends into sociopathy, reasonable people can probably agree that the Amys of these cases getting nothing seems like a fairly harsh remedy. And so Amy's attorneys are suggesting that Congress step in. Which is also what Sotomayor, the lone judge who took Amy's theory, also suggests. Sneakily, at the end of her opinion, she even gives Congress a roadmap to do so:

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.

Unfortunately faint hope, that.

[Image via AP.]