Supreme Court Decision

United States Supreme Court Decision


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April 28, 2014

What Happened to Child Pornography Victims in the Supreme Court

by blogger James R. Marsh

Earlier this week, the United States Supreme Court issued an important decision in the Marsh Law Firm’s long-running effort to obtain compensation for victims of child pornography. The case, Paroline v. United State et. al., attracted 14 amicus (friend of the court) briefs supporting a victim named Amy whose quest for restitution started in 2008.


Our client Amy was sexually abused as a young girl in order to produce child pornography. When she was 17, she learned that images of her abuse were being trafficked on the Internet, in effect repeating the original wrongs, for she knew that her humiliation and hurt would be renewed well into the future as thousands of additional wrongdoers witnessed those crimes.

The defendant in this case, Doyle Randall Paroline, pleaded guilty in federal court to possessing images of child pornography which included Amy, in violation of the federal child pornography laws. Amy sought restitution under 18 U.S.C.§ 2259, the Mandatory Restitution for Sexual Exploitation of Children Act of 1994, for lost income and future treatment and counseling costs.

After several years of litigation in the lower courts and the Fifth Circuit Court of Appeals, the case was accepted by the Supreme Court on June 27, 2013. Oral argument occurred on January 22, 2014.

Amy’s Legal Theory

Amy, whose story was featured last year in the New York Times Magazine and popularized earlier this month by Law and Order SVU as Downloaded Child (watch this clip ironically entitled Restitution at Last which apparently did not influence the justices in our case), argued that joint and several liability would hold not just Paroline responsible, but every other defendant who trades and collects her child sex abuse images.

This legal theory makes every defendant responsible for the full amount of Amy’s losses and shifts the burden on collection from the innocent victim to guilty defendants who are, after all, benefiting and willingly participating online in Amy’s continued sexual abuse.

Once Amy collects the full amount of her losses, she cannot collect any more restitution. The law specifically provides that the Court must set the amount any one defendant pays based on that defendant’s financial resources, thereby insuring that no defendant bears a disproportionate burden. Under Amy’s theory, most defendants would pay the equivalent of child support every month until Amy is made whole. After that, restitution would end and if any defendant felt their obligation was unfair, they could seek contribution from other defendants — like Amy has been doing for six years now — to even things out.

The Court’s Majority Decision

In a split 5-3-1 decision, the Court rejected Amy’s legal theory with all three sides calling for Congressional reform of the law. The majority decision, which was written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Alito, and Kagan, recognized the terrible harm caused by child pornography, but created a regime which will be hard to implement in the lower courts and lead to years, if not decades, of additional litigation about the proper amount of restitution in any given case.

Critically for victims, the Court acknowledged in the strongest possible terms, the devastating nature of this pernicious crime:

The full extent of this victim’s suffering is hard to grasp. Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kind of nightmares and memories that most others will never know. These crimes were compounded by the distribution of images of her abuser’s horrific acts, which meant the wrongs inflicted upon her were in effect repeated; for she knew her humiliation and hurt were and would be renewed into the future as an ever-increasing number of wrongdoers witnessed the crimes committed against her.

The majority explained that

there can be no question that it would produce anomalous results to say that no restitution is appropriate in these circumstances. It is common ground that the victim suffers continuing and grievous harm as a result of her knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse she endured.…Harms of this sort are a major reason why child pornography is outlawed.…In a sense, every viewing of child pornography is a repetition of the victim’s abuse.

Ultimately, however, the Court rejected Amy’s solution of joint and several liability with contribution, and adopted an almost nonsensical standard for determining restitution:

  • a court 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 should not be severe
  • the amount should not be token or nominal
  • the award should be reasonable and circumscribed
  • the award should recognize 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
  • trivial restitution orders are prohibited
  • the victim should someday collect restitution for all her child pornography losses
  • restitution orders should represent an application of law, not a decision-maker’s caprice

The majority urged the lower courts to “use discretion and sound judgment” without resorting to a “precise mathematical inquiry.”

In other words, the majority decision basically accepted the Government’s rejoinder at oral argument that there should be a “fudge factor” when fixing compensation for victim’s of child pornography, while adopting “rough guideposts” for “determining an amount that fits the offense.”

The Court’s Dissent

The dissent, which was written by Chief Justice Roberts and joined by Justices Scalia and Thomas, declared that under the majority’s proposal “Amy will be stuck litigating for years to come” and that the best she can hope to obtain is “piecemeal restitution” and “trivial restitution orders.”

“Congress set up a restitution system sure to fail in cases like this one” which “effectively precluded restitution in most cases involving possession or distribution of child pornography.” When it comes to Paroline’s crime — possession of two of Amy’s images — “it is not possible to do anything more than pick an arbitrary number for that amount.”

The dissent concluded:

The Court’s decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.

Sotomayor, Congress, and Fixing the Law

My next post will review Justice Sotomayor’s dissent and explain how her ideas will influence what happens next as Congress begins fixing the child pornography restitution statute.

Read the full piece by HuffPost blogger James R. Marsh here.

May 7, 2014

How and Why Congress Must Fix Restitution for Victims of Child Pornography

by blogger James R. Marsh

Almost two weeks ago, the United States Supreme Court basically invalidated federal restitution for victims of child pornography. In Paroline v. United States et. al., the Court split three ways with all sides calling for Congressional reform of the law.

Last week I reviewed the Court’s majority and dissenting opinions. Here’s what Justice Sotomayor said in her dissent and how Congress can fix the law.

Justice Sotomayor’s Dissent

Justice Sotomayor, who was alone in her dissent, found that the majority’s approach cannot be reconciled with the restitution law that Congress enacted: Congress mandated restitution for the “full amount of a victim’s losses” with defendants held “jointly and severally liable for the indivisible consequences of their intentional, concerted conduct.”

One key problem that Justice Sotomayor identified is the proper standard of causation and how that gets applied in a world where “child pornography victims suffer harm at the hands of numerous offenders who possess their images in common.”

Justice Sotomayor’s solution to this quandary is aggregate causation.

Aggregate causation applies when “the concurrent or successive acts or omissions of two or more persons, although acting independently of each other, are in combination, the direct or proximate cause of a single injury.” In this case, any defendant may be held liable “even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other” defendants.

The policy issue is simple: the child pornography restitution statute offers no safety-in-numbers exception for defendants who possess images of a child’s sex abuse in common with other offenders. The aggregate causation standard exists to avoid exactly that kind of exception. Congress did not intend the law to create a safe harbor for those who inflict upon their victims the proverbial death by a thousand cuts.

After critiquing the majority’s decision as preventing restitution “in cases where the victim’s losses are caused by too many offenders,” and the dissenter’s decision as foreclosing “entry of restitution in cases where a victim suffers indivisible losses as a result of the aggregate conduct of numerous offenders,” Justice Sotomayor proposed her own solution.

Joint and Several Liability with Contribution

Justice Sotomayor explains that “the nature of the child pornography industry and the indivisible quality of the injuries suffered by its victims make this a paradigmatic situation in which traditional tort law principles would require joint and several liability.”

This means that “individuals who act together, with the common end of trafficking in the market for images of child sexual abuse” cannot “hide behind the anonymity of a computer screen.” As joint actors, they are all each liable for the full amount of the victim’s losses. This is especially important because “the injuries caused by child pornography possessors are impossible to apportion in any practical sense.”

Child pornography possessors are jointly liable under this standard, for they act in concert as part of a global network of possessors, distributors, and producers who pursue the common purpose of trafficking in images of child sexual abuse. As Congress itself recognized, “possessors of such material” are an integral part of the “market for the sexual exploitative use of children.”

By communally browsing and downloading Internet child pornography, offenders like Paroline “fuel the process” that allows the industry to flourish. Indeed, one expert describes Internet child pornography networks as “an example of a complex criminal conspiracy,” the quintessential concerted action to which joint and several liability attaches.

In order to mitigate any unfairness from holding one or even several defendants responsible for the entire amount of a victim’s losses, defendants must be able to seek contribution from all similarly situated defendants. Adding joint and several liability with a right to contribution to the child pornography restitution law will solve two of the problems which vexed both the majority and the dissent.

What Congress Must Do

As Justice Sotomayor recognized, “in the end, of course, it is Congress that will have the final say.” If Congress wishes to re-codify 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.’”

According to Sotomayor, 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.”

In an ideal world, Congress will do both. A Congressional fix must happen quickly since, as Justice Sotomayor recognized, the Court’s decision “unduly undermine[s] the ability of victims like Amy to recover for — and from — the unfathomable harms they have sustained.”

Read the full piece by HuffPost blogger James R. Marsh here.

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