Child pornography and the restitution revolution.

• Author: Lollar, Cortney E.
• Position: Introduction through II. Misguided Attempts to Alleviate Harm A. Debunking Common Theories of Harm 2. Equating Child Pornography Viewers with Hands-On Child Sex Abusers, p. 343-375

Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution. Traditional restitution is grounded in notions of unjust enrichment and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach to restitution amounts" to a criminal version of damages for pain and suffering and loss of enjoyment of life. To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography. Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography. Rather than encouraging victims to move forward with their lives, restitution roots them in their abuse experience, potentially causing additional psychological harm. Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance. This Article calls for an end to the restitution revolution and proposes several alternative approaches that better identify and address the consequences of child pornography.

TABLE OF CONTENTS INTRODUCTION I. RESTITUTION & NON-CONTACT CHILD PORNOGRAPHY CASES A. A Modern History of Restitution B. Restitution in Non-Contact Child Pornography Cases 1. Expanding Restitution 2. The Landscape After Hesketh 3. How to Calculate Harm II. MISGUIDED ATTEMPTS TO ALLEVIATE HARM A. Debunking Common Theories of Harm 1. Viewing Child Pornography as the Primary Harm 2. Equating Child Pornography Viewers with Hands-On Child Sex Abusers 3. Ignoring the Reality of Sexual Abuse Within Families B. Restitution's Potential to Create Harm 1. The Harm of Ongoing Commodification 2. Criminal Restitution as an End Run Around the Tort System 3. Restitution and Deterrence III. TAILORING REMEDIES TO HARM A. Rethinking Restitution 1. Rejecting the Restitution Revolution 2. Empowering Victims B. Alternative Approaches to Eliminating the Harms of Child Sexual Abuse IV. CONCLUSION INTRODUCTION

We are witnessing a restitution revolution. Traditionally, restitution has been a legal mechanism used to disgorge a person's ill-gotten gains, thereby preventing the beneficiary's unjust enrichment at another's expense. Until four years ago, restitution was ordered in criminal cases only when a defendant was the direct source of harm to the victim or the victim's property. In the context of child pornography, the only offenders ordered to pay restitution were those who had documented their own sexual abuse of children, thereby creating the pornography. Victims did not seek restitution from viewers and traders of child pornography, who did not participate in the actual abuse and thus did not directly harm the children depicted. Since 2008, however, restitution in the child pornography context has expanded to become the criminal law's version of civil damages, with judges instead of juries imposing what amounts to emotional damages for pain and suffering and hedonic damages for loss of enjoyment of life.

In 2008, James Marsh, representing a nineteen-year-old named Amy, (1) became the first lawyer to seek restitution from a "non-contact" defendant, someone who possessed and distributed child pornography but did not create it. The defendant, Alan Hesketh, downloaded 1,981 images of child pornography from the Internet; four were photographs of Amy. Amy's uncle had sexually abused her from the ages of four to nine, videotaped the abuse, and then provided those images to an acquaintance. (2) The images of her abuse, known in the world of child pornography as the "Misty" series, have been actively traded on the Internet since 1998, the year Amy's uncle was arrested. (3) Amy's uncle pleaded guilty in federal court to one count of sexual exploitation of children and was ordered to pay $1,125 in restitution to Amy. (4) Ten years later, Amy sought $3.4 million in restitution from Hesketh. (5)

In advocating for Hesketh to pay a far greater amount of restitution than Amy's uncle had, Marsh challenged the generally accepted distinction between a "hands-on" or "contact" offense, such as the sexual exploitation of children, and a non-contact offense, such as the downloading, viewing, or trading of pornography. He asserted that "there is no distinction between, what everyone calls a 'hands on crime' and what the defendant has been convicted of and, in fact, in many ways the actual propagation, distribution, receipt, trading and profiting off of child pornography is worse than the actual hands on crime." (6)

Since Hesketh's case, Marsh and at least two other attorneys representing other young women have filed hundreds of restitution requests with prosecutors across the country in cases involving the possession and receipt of child pornography. (7) In contrast, such restitution requests are rarely being made of defendants who sexually abuse children. Courts are divided as to whether restitution is appropriate in non-contact child pornography cases and, if so, how to quantify the harm caused by the defendants. At the heart of this divide lies a fundamental disagreement about the harms caused by viewing and trading child pornography and the functions of restitution.

Restitution is being imposed in the non-contact child pornography context not as disgorgement of unlawful economic gains, but as a punitive mechanism of compensation for emotional, psychological, and hedonic losses in a manner resembling civil damages. Restitution is being used to punish the defendant for the fact that child pornography continues to circulate against the young woman's wishes by requiring him (8) to compensate the victim for a lifetime of pain and suffering and loss of enjoyment of life. The criminal justice system is aimed at punishing and deterring conduct deemed threatening to society as a whole. Yet this method of imposing restitution in non-contact child pornography cases has begun to transform criminal law into a tool aimed at using punishment to vindicate individual emotional and psychological losses. Instead of focusing on conduct affecting society at large, the restitution imposed in this context punishes those who emotionally injure victims by obtaining, viewing, and sharing child pornography images. Allowing personal vindication to be a goal of restitution undermines the traditional distinction between civil and criminal law, positioning the criminal justice system as a tool for personal retribution rather than societal protection. Asserting that it should be used only to counter unjust enrichment, this Article argues that restitution is inappropriate in non-contact child pornography cases and that it has the potential to harm the victims it is intended to serve. In so doing, it challenges the generally accepted theories of the ongoing harms caused by child pornography and the role that restitution currently plays in addressing those harms. In making restitution awards, courts tend to conflate a defendant's interest in child pornography with a desire to sexually abuse children. Such assumptions are inconsistent with recent social science literature, which indicates the consumption of child pornography in and of itself is not a risk factor for committing hands-on sexual abuse of children. Rather, the average child pornography viewer is educated, employed, prominent in his community, and has no criminal record. Among those who have been convicted of possessing and trading child pornography are an Air Force captain, the head enforcement officer for Immigration and Customs Enforcement, a law professor, and a judge. (9) By equating child sexual abuse with the viewing of child pornography, Congress and courts have shifted the legal and public focus toward voyeurs, who generally do not participate in the sexual abuse of children, and away from family members and family friends, who are the most common child sex abusers. This misdirected focus is revealed by the fact that punishments for child pornography offenders are often far greater than those for sexual abusers, and restitution is rarely sought from those who sexually abuse children. Imposing restitution on individuals unknown to the child contributes to the perpetuation of the "stranger-danger" myth by focusing on unfamiliar individuals who view child pornography rather than those intimate members of the child's inner circle who create it. As a result of a faulty perception of child pornography's harms and the inventive (mis)use of criminal restitution aimed at meeting those misidentified harms, restitution imposed in the child pornography context not only fails to alleviate the harms attributed to non-contact offenders, it also may be detrimental to the young women depicted therein. The methods courts use for calculating restitution run the gamut and often are based on a court's conclusory judgment that the amount imposed is "reasonable." As a result, restitution orders rarely correlate to a specific, proven monetary loss. Instead, judges in essence are reflexively compensating the young women for their lost innocence, thereby further commodifying the sexual acts in which they involuntarily participated. Courts aim to make the young women whole by ordering defendants to pay them for those sexual acts. Restitution in the child pornography context has come to resemble a royalty-based compensation scheme for victims.

Restitution, as revealed in the child pornography context, also...