Child pornography and the restitution revolution.

• Author: Lollar, Cortney E.
• Position: II. Misguided Attempts to Alleviate Harm A. Debunking Common Theories of Harm 3. Ignoring the Reality of Sexual Abuse Within Families through IV. Conclusion, with footnotes, p. 375-406

3. Ignoring the Reality of Sexual Abuse Within Families

   Concentrating on the presumptive harms of child pornography, both in the restitution context and in the criminal justice system as a whole, has ramifications that extend beyond the incorrect assumption that child pornography viewers are also child sexual abusers. By focusing on individuals who have a relatively small chance of committing hands-on child sexual abuse, law enforcement officials, judges, and legislators neglect the far more common scenario in which children are sexually abused by people they already know. Indeed, the sexual abuse portrayed in the vast majority of child pornography was committed and filmed by the child's father, uncle, family member, or close family friend, i.e., someone within the child's circle of trust. (147) As one social science study confirmed, "It is the familial and social circumstances of young children that are the primary factors in their victimization." (148) Eighty-six percent of child sexual abuse victims are abused by someone they already know. (149) More than 96% of child pornography victims already know the person who is filming and producing the images of their sexual abuse. (150)

   Instead of addressing the complexities of sexual abuse within families, the existing approaches to child pornography perpetuate an illusion of the typical child sex abuser, a "sexual predator" living completely outside of normal society. (151) In fact, the use of sexual predator language has become pervasive throughout the legal system in reference to a wide group of individuals. (152) In 1998, Congress passed a law titled the Protection of Children from Sexual Predators Act, which, among other things, increased punishments for all types of child pornography offenses. (153) Various states and localities also have developed initiatives targeted at this putative population. In Kansas, the Sexually Violent Predator Act allows for the civil commitment of members of "an extremely dangerous group" who have a "mental abnormality or personality disorder" and "are likely to engage in repeat acts of sexual violence." (154) The California Department of Justice has a Sexual Predator Apprehension Team, and the Riverside County Sheriff's Department has its own Sexual Predator Internet Decoy Enforcement team. (155)

   Courts also employ the term sexual predator with regularity, implicitly keeping the focus on strangers rather than family members. One state court found the prosecution's references to a defendant as a "predatory monster," "sexual predator," "child predator," and "monster" not objectionable because, according to the court, they represented "reasonable deductions from the evidence" in a case in which the defendant sexually abused his children and their friend. (156) Even the Supreme Court has used the term sexual predators in describing the targets of a group of state sex-offender-related statutes. (157)

   Although in some cases, the use of such terminology may be apt, legislators, law enforcement officials, and courts use the term to describe a broad range of behaviors. They lump all sex-related crimes together, keeping attention on the highly publicized, but rare, instances of child abduction and stranger rape, as the use of "restitution" reveals. In turn, the much more common instances of child sexual abuse, those perpetrated within families, go undetected. As one former FBI agent explained, "[T]he acquaintance molester, by definition, is one of us.... We can not easily distinguish him from us or identify him by physical traits." (158) Thus, there remains a "fundamental barrier" to confronting child sexual abuse: "the inability to connect a person someone knows and cares for with the stereotype of the 'predator' or 'monster' who abuses children." (159)

   When ordering the possessors of child pornography to compensate child sexual abuse victims, courts reinforce the diversion of attention and resources toward the viewers and traders of child pornography, rather than challenging legislators and the public to address the much more common, but messier and more complicated, issues of sexual abuse within families. Amy's uncle, who abused her, filmed the abuse, and then disseminated it, is easily forgotten once those who have viewed the images of her abuse are ordered to pay her millions of dollars in "restitution" in highly publicized cases. Through their restitution orders, then, legislators and courts inadvertently contribute to the danger and potential harm young people face by reinforcing a predator myth that obscures the reality of most childhood sexual abuse.

   2. RESTITUTION'S POTENTIAL TO CREATE HARM

   When imposing restitution in non-contact child pornography cases, the unsupported assumptions about child pornography producers, viewers, and victims on which courts rely lead to the risk that they are harming victims in other ways as well. Because of the way restitution is imposed in child pornography cases, courts risk further commodifying child pornography victims through their compensatory awards. The current method of imposing criminal restitution also challenges the fundamental underpinnings of the criminal justice system by conflating the reimbursement of proven losses with the awarding of what amount to civil damages in a criminal case, leading the criminal justice system to resemble a state-sponsored system for personal vengeance.

1. The Harm of Ongoing Commodification

   Restitution awards may cause harm to the individuals depicted in child pornography by compensating young women for their images. Restitution has long been designed to reimburse specific identifiable losses. In the context of the possession and distribution of child pornography, however, the benefits are intangible, the losses vague, and the future injuries speculative. In fact, future injuries may be caused by restitution rather than alleviated by it.

   A closer look at the way victims have sought, and judges have ordered, restitution in non-contact child pornography cases makes this clear. Amy has sought future lost wages to the age of 65, mental health treatment to the age of 81, expert witness fees, and attorneys' fees, for a total request of upwards of $3 million. Vicky has sought a little over $1 million in each case to cover tuition payments, lost income for delayed entry into the work force, rehabilitation counseling for education and career planning, future lost earnings, future psychological counseling, and attorneys' fees. 160 Yet, with a few exceptions, judges have not ordered that the viewers and traders of child pornography pay the full amount of restitution requested. As indicated previously, most judges are ordering compensation averaging $1,000 to $3,000 for a given defendant.

   Judges have not articulated how the amount of restitution ordered is calculated to address the unjust benefit received by the particular viewer of child pornography, as restitution traditionally requires. In fact, courts do not conceptualize their awarding of restitution as disgorgement of a profit or benefit. Rather, courts situate restitution in a modern compensation framework. Even operating within this framework, judges fail to articulate a specific harm caused by a particular defendant requiring compensation. One court awarded $5,000 as a nominal award despite the Government's failure to submit "any evidence whatsoever" regarding the amount of Amy's losses attributable to that defendant, noting at the same time that it had "no doubt" that the award was "less than the actual harm" the defendant had caused. (161) Another court awarded $3,000 each to Amy and Vicky. (162) The court settled on this amount because "an amount less than $3,000 [is] inconsistent with Congress's findings on the harm to children victims of child pornography," but "is a level of restitution that the court is confident is somewhat less than the actual harm this particular defendant caused each victim, resolving any due process concerns." (163)

   Courts consistently fail to articulate any "benefit" improperly received by the defendant. In a simple theft or stealing case, there is an object of a particular value that the victim has lost and the defendant has gained, that value can be ascertained to a fair degree of accuracy, and the defendant can be ordered to disgorge the object or the value of the object. But with the act of viewing or sharing images of sexual abuse, the benefit is intangible, resulting in no clearly identifiable monetary amount to be disgorged.

   By ordering restitution without articulating the nature of the benefit derived from viewing child pornography, courts appear to be borrowing from the concept of entertainment royalties, where the presumption is that consumers derive pleasure from listening to music or viewing films and, consequently, should pay for the opportunity to experience that pleasure. With traditional royalties, the author of a particular work can seek payment for each time a copy of that work is downloaded, viewed, heard, or distributed, if she has copyrighted or patented it. Likewise, in many states, people have the right of publicity, also known as the right to one's image, and can seek damages if someone uses their images without permission. (164) Restitution in the child pornography context resembles something of a combination of these two concepts. Courts seem to be ordering defendants to pay a child pornography victim a nominal fee every time her image is viewed based on the pleasure they presumably experience from viewing the image.

   This royalties approach does more than commodify victims' images; it also commodities the victims' lost innocence and virginity. Because they rarely point to an identifiable loss when ordering "restitution," courts appear to be attempting to compensate for the sexual acts in which the young women unwillingly participated. In essence, judges are paying young women for each time their image gets viewed or...