< New Frontiers in Child Porn Law

Transcript

Friday, January 24, 2014

BROOKE GLADSTONE:  This week, the Supreme Court considers a case involving the viewing of child pornography online that could have an impact far beyond the case at hand. In 2008, a lawyer named James Marsh became a pioneer in child pornography law, by accident. He’d been hired by the parents of a teenage girl who the courts call “Amy.”

 

Amy's uncle raped her when she was eight or nine, took pictures of it and distributed them online. He went to jail, but his pictures became among the most widely-viewed child porn in the world. Marsh was looking for a way to get Amy restitution, compensation for the damage done to her by the distribution of her picture. Finally, he stumbled on a 14-year-old law he thought might hold the key to Amy's payback. Karen Duffin reports.

KAREN DUFFIN:  It was the Violence against Women Act. Passed in 1994, this act was the first law to comprehensively address domestic abuse and sexual violence against women. James Marsh.

JAMES MARSH:  The statute says the victims are entitled to the full amount of their losses, and it's a mandatory statute. To me, it seemed like a very simple answer to a complicated problem of somebody whose assets were otherwise unrecoverable.

KAREN DUFFIN:  So he sent a restitution request to the US Attorney on Amy's behalf. Marsh just assumed this was standard practice.

JAMES MARSH:  We soon found out that it was the first request for restitution by a victim of child pornography possession in the country.

KAREN DUFFIN:  The 1994 law was born in the Internet's infancy. It didn’t anticipate a time when Internet child pornography would become a multibillion dollar industry. So applying this law to child porn:

JAMES MARSH:  This was something that was new, that nobody felt comfortable dealing with.

KAREN DUFFIN:  The courts are much better versed at dealing punishments for perpetrators than doling out restitution for victims. Marsh’s seemingly simple answer turned out to be so complicated that eight district courts haven't been able to sort it out. So this week the Supreme Court is stepping in. Why was the matter so complicated? Seven words found in the Violence against Women Act. The Act listed the categories of loss that may be compensated, things like medical services or lost income, attorneys’ fees. The last category was, quote, “any other losses suffered by the victim as a proximate result of the offense.” Those seven words:  “as a proximate result of the offense” require that a straight line be drawn from the perpetrator’s action to the victim's loss. But how do you draw a straight line on the tangled web of the Internet?

 

The perpetrator in Amy's case, Doyle Paroline, did plead guilty to possessing her pictures, but his lawyer, Buck Files, says Amy can't draw that direct line.

BUCK FILES:  There is a difference between harm and loss. A person can be harmed but unless they can quantify some conduct on the part of an individual defendant and show that that conduct resulted in a loss to them, then restitution is simply not appropriate. The record clearly reflects that there is nothing to show conduct on his part that results in a loss to Amy.

KAREN DUFFIN:  But a group of senators who helped draft the 1994 law say that you don't have to show a direct line for any category of loss that’s listed in the Act. Victims are automatically entitled to compensation for medical costs, lost income, and so on. Victims have to prove that the perpetrator directly caused their loss only if that loss is not specifically listed. But on the Internet, thousands committed the one crime of viewing Amy's pictures. If every viewer owes Amy restitution, how much does each one owe? James Marsh.

JAMES MARSH:  The challenge in this case really is how do you assign a value to any particular defendant, and that is really what has troubled most of the judges and commentators out there.

KAREN DUFFIN:  She can't just divide her losses by the number of viewers. That’s impossible to calculate. So she has to file suit after suit. Marsh has filed over 700 restitution requests on her behalf. That's what these victims do. They go from state to state, court to court, saying:

MEG GARVIN:  Please give me my restitution, please give me my restitution, please give me my restitution.

KAREN DUFFIN:  Meg Garvin runs the Crime Victim Law Center.

MEG GARVIN:  Amy, who was raped as a child, and now everyone’s looking at her image, [LAUGHS] will have to go across country, court by court, and say, please, please, I need money for my counseling. And that could go on for 20 years.

KAREN DUFFIN:  Amy has calculated her total lifetime loss at $3.4 million, for things like lawyers and therapy, So far, she's recovered $1.7 million from 182 defendants, some with checks for less than $20. The largest was 1.2 million from one wealthy defendant. This process takes a lot of time and a lot of money, and she says it perpetuates her pain. So her lawyer James Marsh started looking for an easier solution, and he found it in a legal theory called, quote, “joint and several liability.” It says that when many people jointly commit a crime, you can sue just one of them for all of your losses, and that one person:

JAMES MARSH:  Is allowed then to go after all of the other defendants who are committing this same crime, and even out the losses.

KAREN DUFFIN:  So it shifts the burden of collecting restitution from the victim to the perpetrator. It’s used primarily in civil cases. Marsh is the first to apply it to child pornography.

JAMES MARSH:  This is a very standard notion in federal law. It just has – hasn’t been, you know, employed in this way to these kinds of individual crimes.

KAREN DUFFIN:  Using joint and several, Marsh identified one person who’d pled guilty to possessing Amy's pictures, the defendant in the Supreme Court case, Doyle Paroline. Amy is suing him for the full 3.4 million, and then Paroline has to chase down the others, if he wants help paying for their aggregate sin.

BUCK FILES:  It boggles the mind that an award of $3.4 million could be entered for an individual who had in his possession two pictures of Amy, one of which was not even of - identifiable, without computer reconstruction.

KAREN DUFFIN:  Paroline’s lawyer, Buck Files, says that such excessive fines are outlawed by the Eighth Amendment. Not so, says Marsh, because they can be shared by the broader pool of defendants, and they’re allowed to pay in installments. Seven District Court sided with Paroline, but one district, the Fifth, accepted joint and several liability and awarded Amy full restitution. So now it's up to the Supreme Court to answer the underlying question:  Who should be responsible for chasing down a victim's losses, the victim or a perpetrator? Meg Garvin, again:

MEG GARVIN:  In the equities analysis, which one is fair, well, Amy’s the victim. She committed no crime. She shouldn't have to do the work. We shouldn't re-victimize her in the process. So I think the equities very clearly fall in Amy's favor.

KAREN DUFFIN:  Jonathan Turley, a law professor at George Washington University, says that if Amy wins, it will fundamentally affect the concept of proximate cause.

JONATHAN TURLEY:  That may seem arcane to most people but that concept is what limits the legal system to prevent the abuse of those accused of crimes. So this goes far beyond child pornography. It will have ramifications across the fields of torts and constitutional law, as well as criminal law. This is as fundamental a challenge to this principle as we have seen in this country.

KAREN DUFFIN:  So, to recap, the High Court not only has to reckon with a rare case of restitution in a criminal case, charged to a viewer of child porn on the legally murky terrain of the Internet, no less. It also has to decide whether to leave that viewer, one among tens of thousands, with the whole bill and, before all that, reconsider whether the victim does, in fact, have to prove proximate cause, defined as, quote, “an act from which an injury results and without which the injury would not have occurred.”

  [MUSIC UP & UNDER]

Amy's life was derailed by a monstrous uncle and then by a legal system slammed by the unforeseen impact of the Internet, but relieving her distress may cause a ripple of unintended consequences. What if other information is, say, stolen, posted online and then downloaded by some random third person, would that person be liable for all the potential harm caused by viewing? Should that person be bankrupted because of a curious click? It’s a good day not to be a judge. For On the Media, this is Karen Duffin.

Contributors:

Karen Duffin