Slow acid drips and evidentiary nightmares: smoothing out the rough justice of child pornography restitution with a presumed damages theory.

AuthorGiannini, Mary Margaret
PositionIntroduction to III. Slow Acid Drips: Reframing Victim Harm Through a Privacy and Defamation Analogy B. A Right to Privacy, p. 1723-1748

ABSTRACT

Section 2259 of Title 18 of the United States Code directs that those convicted of distribution or possession of child pornography shall pay restitution for the full amount of the victim's losses. Courts have struggled, however, with interpreting and applying the statute's proximate cause language, resulting in rough justice for victims and defendants. A majority of courts interpret [section] 2259 as including a proximate cause requirement, but are inconsistent in their definition and application of that standard. Victims are subjected to the "slow acid drip" of the continued knowledge that their images are being circulated and viewed by countless individuals, while they face the "evidentiary nightmare" of attempting to proximately link the ongoing harm they suffer to a specific defendant's possession of their image. In the end, many victims are denied recovery. Conversely, some defendants have been saddled with enormous restitution awards that do not fairly represent the harm the defendant caused to the victim. In an attempt to soften this rough justice, this Article proposes the crimes of distribution and possession of child pornography be viewed as a criminal species of privacy and defamation torts. Courts have long recognized the dignitary and reputational harms associated with privacy and defamation tort claims are difficult, if not impossible, to quantify, but nonetheless require compensation. In these narrow settings, courts and legislatures have turned to the doctrines of general and presumed damages to afford victims relief Congress should similarly revise [section] 2259 to employ a variant of presumed damages in which defendants must pay victims a set statutory amount for distribution or possession of their images.

INTRODUCTION I. THE AMY AND VICKY CASES II. ROUGH JUSTICE: THE COURTS' VARIED INTERPRETATIONS AND APPLICATIONS OF [section] 2259 A. The Restitutionary Framework of [section] 2259 B. Proximate Cause? C. Applying the Proximate Cause Standard 1. Estimating Restitution 2. No Restitution or Only Nominal Restitution 3. Introducing a Solution: Presumed Criminal Damages III. SLOW ACID DRIPS: REFRAMING VICTIM HARM THROUGH A PRIVACY AND DEFAMATION ANALOGY A. Linking Child Pornography Distribution and Possession with Privacy and Defamation B. A Right to Privacy 1. Intrusion on Seclusion 2. Publicity Given to Private Facts 3. False Light and Defamation IV. EVIDENTIARY NIGHTMARES: SOFTENING THE EDGES BETWEEN CIVIL DAMAGES AND CRIMINAL RESTITUTION A. Privacy and General Damages B. Defamation and Presumed Damages V. SMOOTHING OUT THE ROUGH: A PRESUMED DAMAGES REMEDY FOR VICTIMS VI. CONCLUSION INTRODUCTION

Crime is costly. Governments struggle with balancing the costs of law enforcement, maintaining functional court and prison systems, and rehabilitating offenders. Victims are faced with property loss, medical costs, lost wages, mental health expenditures and the long process of rebuilding their lives. In an attempt to aid victims on their path toward recovery, Congress has passed a number of criminal restitution statutes. (1) Included among these statutes is the Violent Crime Control and Enforcement Act (VCCEA), which requires mandatory restitution to victims of child exploitation, (2) including victims of child pornography distribution and possession.

It has been estimated that "commercial child pornography is a $20 billion industry worldwide, fueled by the Internet." (3) Reports indicate that there may be "more than one million pornographic images of children on the Internet, with 200 new images posted daily." (4) Additionally, it has been estimated that "between 50,000 and 100,000 pedophiles [are] involved in organized pornography rings around the world, and that one-third ... operate from the United States." (5) However, as defendants are prosecuted and victims seek restitution under [section] 2259 of the VCCEA, it is becoming increasingly clear that the statute is ill equipped to appropriately address the harms suffered by children who have been sexually abused and whose images of that abuse are subsequently distributed and possessed by others.

Courts have noted the harms suffered by victims of child pornography distribution and possession are like a "slow acid drip." (6) Victims are constantly reminded of their original abuse by the fact that others are deriving perverse pleasure from viewing images of the same. However, it can be an "evidentiary nightmare" (7) for a victim to disentangle the harm she suffered from the original abuse and the harms arising from the subsequent distribution and possession of images of that abuse. Victims' evidentiary nightmares are exacerbated by the courts' struggle with how to interpret [section] 2259 of the VCCEA. A majority of courts have ruled the statute requires that any and all claimed victim losses must be proximately linked to the defendant's acts. Conversely, a few district and appellate courts have ruled the statute's proximate cause requirement is limited to a far narrower category of losses. Courts that read [section] 2259 as requiring a proximate cause link between a victim's losses and a particular defendant's possession either decline to award restitution to victims or render awards in a seemingly haphazard and inconsistent manner. (8) Conversely, at least one trial court interpreted [section] 2259 such that it was willing to impose a multi-million dollar restitution award against a single defendant who only possessed six images of the given victim. (9) These differing interpretations of [section] 2259 have resulted in inconsistent and rough justice for both victims and defendants.

In the midst of this rough justice, even those courts denying restitution to victims have begun a steady refrain calling Congress to reexamine [section] 2259 and establish a better remedy for child pornography distribution and possession victims. This Article joins in that chorus and suggests that Congress establish a set statutory award for such victims.

In advocating for a set statutory award, this Article suggests that the crimes of child pornography distribution and possession should be viewed through the lens of privacy and defamation torts. Courts have long recognized the harms arising from privacy and defamation tort claims are hard, if not impossible, to quantify, but still should be compensated. In these narrow settings, courts and legislatures have turned to the doctrines of general and presumed damages to afford relief. A similar construct should be applied to the crimes of child pornography distribution and possession. Instead of requiring that victims' losses be proved under a proximate cause standard, Congress should write a statute that provides victims with a set statutory award akin to presumed or liquidated damages. If a victim believes the defendant caused losses beyond the statutory amount, the victim could seek restitution under [section] 2259's proximate cause standard or other legal means.

This proposal helps address the inherent dignitary and reputational harms suffered by victims of child pornography distribution and possession and ensures a baseline recovery. Defendants are also protected from being subjected to restitution obligations which may outmatch a reasonable estimate of the harm they have imposed on their victims. By viewing the crime of distribution and possession of child pornography as the criminal cousin to invasion of privacy or defamation, and allowing for a limited presumed damages remedy for victims, the rough justice that currently exists under [section] 2259 will be softened.

Part I of this Article addresses the series of cases that have brought [section] 2259's interpretive problems to the fore. Part II gives an overview of the current disarray among the district and circuit courts regarding how to interpret [section] 2259. It concludes by proposing that instead of applying a proximate cause standard to victim losses which arise from the distribution and possession of pornographic images Congress should impose a limited statutory penalty against defendants to be paid directly to victims.

Parts III through V of this Article justify the proposal by developing the theory that the harms associated with the distribution and possession of child pornography should be examined through the prism of privacy and defamation law. Part III details how the harms suffered by victims of child pornography possession and distribution can be easily likened to the harms suffered by tort plaintiffs whose privacy has been invaded or who have been defamed. Part IV investigates how the general damages and presumed damages theories from privacy and defamation cases can be extended to victims of child pornography distribution and possession. Part V further supports the overall proposal by noting other instances in the law where the principle of presumed or liquidated damages has been afforded by Congress to individuals whose privacy rights have been invaded. This Part also contends such a remedy would not be discordant with the general goals of the criminal justice system. Part VI concludes by asserting that this proposed statutory change will smooth out the rough justice that is currently being administered under [section] 2259.

  1. THE AMY AND VICKY CASES

    Two recent series of cases have highlighted problems inherent in [section] 2259 restitution determinations. Commonly named the "Amy" and "Vicky" cases, (10) these controversies showcase the varied approaches courts have taken when addressing whether to award restitution to victims of child pornography possession, and if so, how much. (11)

    Amy and Vicky, now women in their mid-twenties, were sexually abused by family members. Amy's uncle sexually abused her between the ages of four and nine, and Vicky's father sexually abused her between the ages of five and eleven. Among the many awful acts these men committed, Amy's uncle forced her to engage in sex telephone calls and Internet...

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