Liability for Mass Sexual Abuse

56 American Criminal Law Review 185 (2018)

When harm is caused to victims by multiple injurers, difficult issues arise in determining causation of, legal responsibility for, and allocation of liability for those harms. Nowhere is this more true than in child pornography and sex trafficking cases, in which individuals have been victimized over extended periods of time by hundreds or even many thousands of injurers, with multiple and often overlapping victims of each injurer. Courts (and lawyers) struggle with these situations for a simple reason: they insist on applying tests of causation that fail when the effect was over-determined by multiple conditions. The failure to properly understand the causation issue has exacerbated failures to properly understand and distinguish the injury, legal responsibility and allocation of liability issues.

All of these issues, plus other significant issues, arose in Paroline v. United States (2014), in which the Supreme Court considered the statutory liability of a convicted possessor of child pornography to a victim whose images he possessed for the pecuniary losses that she suffered due to her knowledge of the widespread viewing of those images. This article critiques the Justices’ opinions in Paroline as part of a broader discussion that is intended to clarify and distinguish the causation, injury, legal responsibility and allocation of liability issues in general and as applied in particular to situations involving mass sexual abuse, while also criticizing the Court’s ill-considered dicta that would make any compensatory award in civil as well as criminal cases subject to the Constitutional restrictions on criminal punishment.

Richard W. Wright

University Distinguished Professor of Law at Chicago-Kent College of Law

Professor Wright’s teaching and research focus on domestic and comparative tort law, jurisprudence, law and economics, and law and artificial intelligence. His published work appears in several international collections of leading scholarship on tort law and legal philosophy. He is an elected member of the American Law Institute and has been an active participant in its revision of the Restatement of the Law Third on Torts, including serving as an Adviser to the Reporters for the Restatement on Apportionment of Liability. He also has served as a member of the executive committee and as chair of the Section on Torts and Compensation Systems of the Association of American Law Schools. He is a member of the advisory boards of the Journal of Tort Law, the Center for Justice and Democracy, and the Torts, Product Liability and Insurance Law Journal of the Social Science Research Network and is an external partner of the Centre for Enterprise Liability at the University of Copenhagen.

Tsachi Keren-Paz

Professor of Private Law at Keele University School of Law in Staffordshire, UK

Keren-Paz’s research on increasing protection to victims of trafficking through developing a better framework of private law remedies has informed several policy interventions. He has advised the POPPY Project and Anti-Slavery on improving compensation to victims, and been consulted on the preparation of an Amicus Curia brief in Hounga v Allen (pending decision by the Supreme court) on the illegality defence in a migrant work context. He has been contacted by The Anti-Trafficking Monitoring Group which reports to GRETA (Council of Europe Group of Experts on Action against Trafficking in Human Beings) which drew on his expertise with respect to human trafficking. In 2006 Keren-Paz drafted the opinion paper ” The Anti-Trafficking Statutory Fund: Its Goals, The Priority Between Them, and the Way It Is Funded” for Hotline for Migrant Workers, and was invited to participate in the deliberations on the reform to Israel’s Prohibition of Trafficking in Persons (Legislative Amendments) Law 2006 in the Constitution, Law and Justice Committee. He also advised the then legal advisor of Hotline for Migrant Workers in litigating several private law claims of victims of trafficking in Israeli courts, and was a member of Israel’s Governmental Task-Force Fighting Human Trafficking.