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U.S. Supreme Court

Child porn possessors must pay victims restitution, but liability is limited, SCOTUS rules

Posted Apr 23, 2014 10:28 AM CDT
By Stephanie Francis Ward

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Updated: Possessors of child pornography are financially responsible for victims' pain and suffering, the U.S. Supreme Court ruled Wednesday, but it rejected an assertion that a man who pleaded guilty to possessing some of a victim’s images is liable for $3.4 million.

The case involves a woman known as "Amy," whose uncle took pornographic images of her when she was a child. According to USA Today, those particular photos are popular with online child pornography traffickers.

The petitioner, Doyle Paroline, pleaded guilty to federal charges of possessing child pornography, including two images of Amy. Amy sought $3.4 million in damages from Paroline under the Violence Against Women Act, which sets penalties and restitution for sexual assault, domestic violence and child pornography.

As of January 2012, Amy had filed claims in 744 cases and been identified in more than 1,500, her attorney James Marsh told the ABA Journal in an earlier story. Her legal team argued that each person who possessed the images of her abuse should be liable for the full damages she suffered, which includes the cost of her psychological treatment, lost income and attorney fees.

A district court declined to award the victim damages. The New Orleans-based 5th U.S. Circuit Court of Appeals reversed, finding that the law did not limit restitution to losses proximately caused by the defendant. Also, the court found that each defendant who possessed pornographic images of the victim should be made liable for the victim’s entire losses.

The statute outlines six categories of covered losses, Justice Anthony M. Kennedy wrote for the majority, including a general category, for “any other losses suffered by the victim as a proximate result of the offense.”

The majority rejected the victim’s argument that if Congress had wanted to limit losses to proximate cause, it would have written the statute more specifically. “Reading the statute to impose a general proximate-cause limitation accords with common sense,” the ruling (PDF) states.

Kennedy wrote that the court should award the victim "an amount that comports with the defendant’s relative role" in the harm suffered by the victim. "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."

Amy released a statement through her attorney Paul Cassell on the Volokh Conspiracy blog after the ruling. "I really don’t understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives," she said. "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."

Justice Ruth Bader Ginsburg, Stephen G. Breyer, Samuel Anthony Alito Jr. and Elena Kagan joined the majority.

Chief Justice John G. Roberts Jr. wrote a dissent, joined by Justices Antonin Scalia and Clarence Thomas. In it, Roberts states that Congress' approach to restitution to the victims of child pornography was flawed.

"Instead of tailoring the statute to the unique harms caused by child pornography, Congress borrowed a generic restitution standard that makes restitution contingent on the Government’s ability to prove, 'by the preponderance of the evidence,' 'the amount of the loss sustained by a victim as a result of' the defendant’s crime," Roberts wrote. "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.' And arbitrary is not good enough for the criminal law."

"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," he concludes. "The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it."

Another dissent was written by Justice Sonia Sotomayor, stating that the 5th Circuit's decision should be affirmed, and that Paroline should be liable for the full restitution.

"I appreciate the court's effort to achieve what it perceives to be a just result. It declines to require restitution for a victim's full losses, a result that might seem incongruent to an individual possessor's partial role in a harm in which countless others have participated," Sotomayor wrote. "And it rejects the position advanced by Paroline and the dissenting opinion of the Chief Justice, which would result in no restitution in cases like this for the perverse reason that a child has been victimized by too many. The court's approach, however, cannot be reconciled with the law that Congress enacted."

Related articles:

ABAJournal.com: "Should child-porn viewers be liable for full restitution to victims? SCOTUS considers case this week"

ABA Journal: "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"

Updated at 11:59 a.m. to add the victim's statement and to quote further from the decision.

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